r
NORTH CAROLINA
REGISTER
VOLUME 13 • ISSUE 3 • Pages 261 -352
August 3, 1998
IN THIS ISSUE
vs iioard
- i!-_.iiigs, Office of
Public Accountant Examiners
iDcc Trutessionals
"Natural Resources
m Services
Rules Re \ n
Contested Case Decisions
PUBLISHED BY
The Office of Adminhirativp Hearings
Rules Division
PO Drawer 27447
Raleigh, NC 27611-7447
Telephone (919) 733-2678
Fax (919) 733-3462
Thu nuhn.ijiinn it nrintpj on permanent, acid-free paper in compliance with G.S. 125-11.13
For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its
components, consuh with the agencies below. The bolded headings are typical issues which the given
agency can address, but are not inclusive.
Rule Notices. Filings. Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division ^-
Capehart-Crocker House (91 9) 733-2678
424 North Blount Street ^-^' (919) 733-3462MX
Raleigh, North Carolina 2760 1 -2817
contact: Molly Masich, Director APA Services
' * * Ruby Creech, Publications Coordinator
niniasich@oah.state.nc.us
rcreech@oah.state.nc.us
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Street
Raleigh, North Carolina 27603-8005
contact: Mark Sisak, Economist III
(919)733-7061
(919) 733-0640 FAX
msisak®osbm.state.nc.us
Rule Review and Legal Issues
Rules Review Commission
1 307 Glenwood Ave., Suite 159
." Raleigh, North Carolina 27605
contact: Joe DeLuca Jr., Staff Director Counsel
Bobby Bryan, Staff Attorney
(919)733-2721
(919) 733-9415 FAX
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (9 1 9) 733-2578
Raleigh, North Carojina 27611 (919) 71 5-5460 FAX <,
contact: Mary Shupidg, Staff Liaison nuiui^s@in;^,ncga.state.p6rl4S
County and Municipality Government Questions or Notification
NC Association of County Commissioners
2 1 5 North Dawson Street (9 1 9) 7 1 5-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn or Rebecca Troutman
NC League of Municipalities
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Paula Thomas
(919)715-4000
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
Volume 13, Issue 3
Pages 261 - 352
Augusta, 1998
This issue contains documents officially filed
through July 13, 1998.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601 )
PO Drawer 27447
Raleigh. NC 2761 1-7447
(919)733-2678
FAX (919) 733-3462
Julian Mann 111. Director
Camille Winston. Deputy Director
Molly Masich, Director of APA Services
Ruby Creech. Publications Coordinator
Jean Shirley. Editorial Assistant
Linda Dupree, Editorial Assistant
IN THIS ISSUE
I. IN ADDITION
Health and Human Services
COPA 261
Revenue
Tax Review Board 262 - 267
II. RULE-MAKING PROCEEDINGS
Environment and Natural Resources
Wildlife Resources Commission 269
Health and Human Services
Medical Assistance 268
Labor
Boiler and Pressure Vessel Division 269
Wage and Hour Division 268 - 269
WORD Division 268
Licensing Boards
Certified Public Accountant Examiners .... 269
III. PROPOSED RULES
Environment and Natural Resources
Environmental Management Commission . . . 270 - 302
Marine Fisheries Commission 303 - 313
Health and Human Services
Facility Services 270
Licensing Boards
Employee Assistance Professionals 313-315
IV. TEMPORARY RULES
Environment and Natural Resources
Health Services Commission 325 - 333
Health and Human Services
Medical Assistance 316 - 320
Social Services 320 - 323
Insurance
Life and Health Division 323-325
V. APPROVED RULES 334-336
Administrative Hearings, Office of
General
Health and Human Services
Social Services
Justice
Private Protective Services Board
Sheriffs' Education and Training Standards
Licensing Boards
Cosmetic Art Examiners
Revenue
Individual Income Tax Division
Motor Fuels Tax Division
VI. RULES REVIEW COMMISSION 337-339
VIL CONTESTED CASE DECISIONS
Index to ALJ Decisions 340 - 342
Text of Selected Decisions
97OSP1018 343-349
98 ABC 0382 350-352
VIII. CUMULATIVE INDEX 1-49
.\orrh Carolina Register is published semi-monthl\ for S195 per year b\ the Office of Administrative Hearings. 424 North Blount Street. Raleigh. NC
27601. (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh. NC. POSTMASTER: Send Address changes to the Xorili Carolina Register,
PO Drawer 27447. Ralemh. NC 2761 1-7447.
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
The North Carolina Administrative Code fSCACj has four major subdivisions of rules. Two of these, titles and chapters,
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be
numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when
appropriate.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE
DEPARTMENT
LICENSING BOARDS
CHAPTER
1
Administration
Acupuncture
1
-)
Agriculture
Architecture
2
3
Auditor
Athletic Trainer Examiners
3
4
Commerce
Auctioneers
4
5
Correction
Barber Examiners
6
6
Council of State
Certified Public Accountant Examiners
8
7
Cultural Resources
Chiropractic Examiners
10
8
Elections
Emplo\ee Assistance Professionals
11
9
Go\emor
General Contractors
12
10
Health and Human Sen ices
Cosmetic Art Examiners
14
11
Insurance
Dental Examiners
16
12
Justice
Dietetics 'Nutrition
17
13
Labor
Electrical Contractors
18
14A
Crime Control & Public Safet>
Electrol\sis
19
15A
En\ironment and Natural
Foresters
20
Resources
Geologists
21
16
Public Education
Hearing Aid Dealers and Fitters
T)
17
Revenue
Landscape Architects
26
18
Secretap. of State
Landscape Contractors
28
19A
Transportation
Marital and Famil> Therapy
31
20
Treasurer
Medical Examiners
"?"*
•21
Occupational Licensing Boards
Midwifen, Joint Committee
33
")-)
Administrative Procedures
Mortuar. Science
34
23
Community Colleges
Nursing
36
24
Independent Agencies
Nursing Home Administrators
37
25
State Personnel
Occupational Therapists
38
26
Administratis e Hearings
Opticians
40
T7
NC State Bar
Optometp.
42
Osteopathic Examination &. Reg. (Repealed)
44
Pastoral Counselors. Fee-Based Practicing
45
Pharmac)
46
PhNsical Therapx Examiners
48
Plumbing. Heating & Fire Sprinkler Contractors
50
Podiatp. Examiners
52
Professional Counselors
53
Psycholog\ Board
54
Professional Engineers &. Land Sur\e>ors
56
Real Estate .Appraisal Board
57
Real Estate Commission
58
Refrigeration Examiners
60
Sanitarian Examiners
62
Social Work Certification
63
Soil Scientists
69
Speech & Language Pathologists & .Audiologists
64
Substance .Abuse Professionals
68
Therapeutic Recreation Certification
65
Veterinar\ Medical Board
66
Note: Title 21 contains the chapters of the \arious occupational Hcensing boards.
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IN ADDITION
This Section contains public notices that are required to be published in the Register or have been
approved by the Codijier of Rules for publication.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
DIVISION OF FACILITY SERVICES
Notice is hereby given that Memorial Mission Hospital, Inc. and St. Joseph's Hospital, holders of a Certificate of Public Advantage
(COPA) issued by the Department of Health and Human Services with the consent of the North Carolina Attorney General pursuant
to N.C. Gen. Stat. §13 IE- 192. 5 on December 21, 1995, have petitioned to amend the COPA.
The amendment would reflect a proposed merger of St. Joseph's Hospital with and into Memorial Mission Hospital and the merger
of Mission-St. Joseph's Health System, Inc. with and into Memorial Mission's parent. Memorial Mission Medical Center, Inc.
The Department and the Attorney General will receive written comments on the proposed amendment through August 31, 1998.
Comments may be addressed to:
Mr Robert J. Fitzgerald
Deputy Director
Division of Facility Services
N.C. Department of Health and Human Services
Post Office Box 29530
Raleigh, North Carolina 27626-0530
OR
Mr Kip D. Sturgis
Assistant Attorney General
N. C. Department of Justice
Post Office Box 629
Raleigh. North Carolina 27602-0629
Notice is hereby given that pursuant to N.C. Gen. Stat. §13 IE- 192. 9 the Department of Health and Human Services has received
a Periodic Report from Memorial Mission Hospital. Inc. and St. Joseph's Hospital. The Periodic Report is required by the statute
from holders ofa Certificate of Public Advantage (COPA). The Hospitals hold a COPA issued December 21. 1995 by the Department
of Health and Human Services with the consent of the Attorney General.
Written comments on the report and on the benefits and disadvantages of continuing the COPA will be received through August
31, 1998, and should be addressed to:
Mr Robert J. Fitzgerald
Deputy Director
Division of Facility Services
N.C. Department of Health and Human Services
Post office Box 29530
Raleigh, North Carolina 27626-0530
OR
Mr. Kip D. Sturgis
Assistant Attorney General
N. C. Department of Justice
Post Office Box 629
Raleigh. North Carolina 27602-0629
NORTH CAROLINA REGISTER Aueust 3. I99S
^^mi
IN ADDITION
STATE OF NORTH CAROLINA
COUNTS' OF WAKE
BEFORE THE
TAX RE\1EW BOARD
IN THE MATTER OF:
The Proposed Assessments of Additional High\va> Use Tax
for the period of June 1. 1 903 through Februan. 28. IQO?.
b\ the Secretar\ of Revenue \s. Dail_\ Car Rental. Inc. Taxpayer
ADMIMSTR\TI\ E
DECISION NUMBER: 346
This matter was heard before the Tax Re\'ieu Board in the cit> of Raleigh, on April 28. 1 998. upon Taxpa\er"s petition for
administrative review of the Final Decision of the Secretarv of Revenue sustaining a proposed assessment of alternate highvvav use
tax for the period of June 1. 1993. through Februan. 28. 1997. Taxpayer was presented at the hearing bv E. Cader Howard. Edwin
P. Friedberg. and Nancv Krolikow ski. Attomev s at Law, The Secretan. of Rev enue v\ as represented at the hearing b\ George W.
Bovlan. Special Deput> Attomev General.
Chairman Harlan E. Bo> les. State Treasurer presided over the hearing with Jo Anne Sanford. Chair. Utilities Commission
and dulv- appointed member. Noel L. Allen. Attomev at Law participating.
Pursuant to G.S. 105-241.1. Notice of Motor Vehicle Lease-Audit Tax Assessment for the period of June 1. 1993 through
FebruarN 28. 1997. was mailed to Taxpaver on April 9. 1997. assessing highvvav use tax. plus penalties and interest. Taxpaver
objected to the assessment and timely requested a hearing before the Secretary of Revenue. By final decision entered on December
22. 1997. the Assistant Secretan. modified the assessment against the Taxpaver for the period of June 1. 1993. through February 28.
1997. The Assistant Secretan. determined that on the general ledger accounts. Taxpaver described the amounts collected from its
customers bv various terms, including "sales tax pavable." "sales tax pavable surcharge" "surcharge." "tax surcharge." "revenue
surcharge." and "sales tax surcharge." The .Assistant Secretan. concluded that all entries classified as "sales tax pavable" or "sales
tax pavable surcharge" represented collections of tax and sustained the assessments to that extent. The remainder of the assessments
was vacated. Accordinglv. the amount of the actual proposed assessment was reduced from approximatelv S59.000 to S24.000.
Pursuant to G.S. 105-241.2. Taxpaver timelv filed notice and petition for administrative review of the .Assistant Secretan, "s final
decision with the Tax Review Board.
ISSUE
The issue to be decided in this matter is as follows:
follows:
Did the Secretan. of Revenue properlv sustain the assessment for over collected highvvav use tax?
EVIDENCE
The evidence presented at hearing before the Secretan. of Revenue and included in the record presented to the Board is as
Face sheet of auditor's report and audit comments dated March 20. 1997. designated as Exhibit E-1.
Notice of Motor Vehicle Lease-.Audit Tax Assessment dated April 9. 1997. designated as Exhibit E-2.
Rental agreements and customer invoices, designated as Exhibit E-3.
Ledger sheet from taxpaver's records, designated as Exhibit E-4.
Letter dated April 17. 1997. and attachments from taxpaver's attomev- to Secretan.- of Revenue, designated as Exhibit E-5.
Letter dated Mav 27. 1997. from Sales and Use Tax Division to taxpaver's attomev. designated as Exhibit E-6.
Letter dated Mav 30. 1997. fi"om taxpaver's attomev to Sales and Use Tax Division, designated as Exhibit E-7.
Letter dated June 19. 1997. from the Assistant Secretan. for Legal and Financial Services to taxpaver's attomev. designated
as Exhibit E-8.
262
NORTH CAROLINA REGISTER
Ausust 3. 1998
m
INADDITION
9. Memorandum dated April 18, 1996, designated as Exhibit E-9.
1 0. Brief for Tax Hearing, designated as Exhibit E- 1 0.
1 1 . Taxpayer's Exhibits A through I, designated as Exhibit TP-1 .
12. Letter dated September 22, 1997, from taxpayer's attorney to the Assistant Secretar>' and attachments, designated as Exhibit
TP-2.
FINDINGS OF FACT
The Board considered the following findings of fact made by the Assistant Secretary in determining its decision:
1 . Taxpayer is a corporation engaged in the business of renting motor vehicles on a short-term basis and is also a designated
agent for Ryder Truck Rental.
2. The Highway Use Tax Act allows a motor vehicle lessor to pay the highway use tax on a motor vehicle held for lease or
rental when applying for a certificate of title or collect and remit the alternate highway use tax on the gross receipts of the
lease or rental.
3. Taxpayer paid the highway use tax to the North Carolina Division of Motor Vehicles when applying for certificates of title.
4. Under paragraph 12. D of its rental agreement, taxpayer charged its lessees amounts equal to the rate of the North Carolina
highway use tax applicable to short-term rentals of motor vehicles but did not remit the amounts to the Department.
5. Taxpayer denominates the amounts charged its lessees under paragraph 12. D as taxes.
6. In taxpayer's general ledger accounts, supporting schedules refer to these amounts by various terms such as "surcharge,"
"sales tax," and "sales tax payable."
7. G.S. 105-187.5 requires the Secretar\' of Revenue to administer the alternate highway use tax in the same manner as the sales
tax levied on leases or other tangible personal property.
8. 105-164.11 provides that a tax erroneously collected on exempt of nontaxable sales (rentals) shall be remitted to the
Secretary and shall be refunded to the taxpayer onl\ if the purchaser (lessee) has received credit for or a refund of such tax.
9. Taxpayer did not remit to its purchasers (lessees) any of the amounts collected by it as surcharges, sales tax, etc.
CONCLUSIONS OF LAW
The Board considered the following conclusions of law made by the Assistant Secretary in the final decision:
1 . Taxpayer was at all relevant times a lessor of motor vehicles.
2. Amounts collected from customers designated as "Sales Tax Payable" or "Sales Tax Payable Surcharge" constitute erroneous
collections of tax and must be remitted to the Department.
3. Amounts collected from customers designated as "Surcharge," "Tax Surcharge" "Revenue Surcharge," "Sales Tax," or "Sales
Tax Surcharge" to the extent consistentK documented as such for accounting purposes upon taxpayer's books and records
constitute reimbursement of tax paid and are not erroneous collections.
DECISION
The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. 1 05-24 1.2(b2). After
the Board conducts a hearing this statute provides in pertinent part:
(b2). "The Board shall confirm, modify', reverse, reduce or
increase the assessment or decision of the Secretary."
The Board having conducted a hearing in this matter and having considered the petition, the briefs, the record and the final
decision of the Assistant Secretary, concludes that the fmdings of fact made by the Assistant Secretary were supported by competent
evidence in the record: that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the
findings of fact: therefore the decision of the Assistant Secretary should be confirmed.
IT IS THEREFORE ORDERED, that the Board confirms in ever> respect the Assistant Secretary 's final decision in this
manner for the period of June 1, 1993, through February 28, 1997.
^^^^mmmmma^mm^^^^^^^^M
IN ADDITION
Made and entered into this 24th da\ of June, 1998.
TAX REVIEW BOARD
s/Harian E. Boyies. Chairman
State Treasurer
s/Jo Anne Sanford
Chair, Utilities Commission
s/Noel L. Allen, Appointed Member
\ORTH CAROLINA REGISTER August 3. 1998 13:3
]^n^^RQU^^EGI^^^^^^^^Au8us^
IN ADDITION
STATE OF NORTH CAROLINA BEFORE THE
TAX REVIEW BOARD
COUNTY OF WAKE
IN THE MATTER OF: ADMINISTRATIVE
DECISION Number: 3£7
The Proposed Assessments of Additional Income Tax
for the Taxable Years 1993, 1994, and 1995 by the Secretary
of Revenue of North Carolina vs. Frederick E. and Irene R.
Adams. Taxpayers
This matter was heard before the Tax Review Board in the city of Raleigh, on April 28, 1998, upon Taxpayers" petition for
administrative review of the Final Decision of the Secretary of Revenue sustaining the assessment of additional tax, including penalty
and interest, assessed against them for tax years 1993, 1994, and 1995. Taxpayer appeared at the hearing pro se. Marilyn R. Mudge,
Assistant Attorney General appeared at the hearing on behalf of the Secretary of Revenue.
Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission
and duly appointed member, Noel L. Allen, Attorney at Law participating.
Pursuant to G.S. 1 05-24 1.1. Notices of Individual Income Tax Assessment for tax years 1993, 1994, and 1995 were mailed
to Taxpayers on December 30, 1996, assessing additional income tax, a ten percent late-payment penalty, and accrued interest. For
the tax years 1994, and 1995, a penalty was also assessed for the underpayment of estimated income tax. The assessments resulted
from the auditor disallowing tax credits for the tax years 1993, 1994, and 1995, in the amounts of $1,000, $1,000 and $500,
respectively, claimed by Taxpayers on their income tax returns for solar heating, cooling, and hot water system. Taxpayers objected
to the assessments and timely requested a hearing before the Secretary of Revenue. By final decision entered on July 23, 1997, the
Assistant Secretary sustained the assessments against the Taxpayers for the tax years 1993, 1994, and 1995. Pursuant to G.S. 105-
241.2, Taxpayers timely filed notice and petition for administrative review of the Assistant Secretary's final decision with the Tax
Review Board.
ISSUE
The issue to be decided in this matter is as follows:
Were the solar credits claimed on Taxpayers' 1993, 1994, and 1995 individual income tax returns properly disallowed?
EVIDENCE
The evidence presented at hearing before the Secretary of Revenue and included in the record presented to the Board is as
follows:
1 . Memorandum dated April 18, 1996, fi^om the Secretary of Revenue to the Assistant Secretary of Revenue, designated as Exhibit
PT-1.
2. Taxpayers" North Carolina individual income tax return for the taxable year 1990, designated as Exhibit PT-2.
3,
4
5
6
7
Taxpayers' North Carolina individual income tax return for the taxable year 1991. designated as Exhibit PT-3.
Taxpayers" North Carolina individual income tax return for the taxable year 1992, designated as Exhibit PT-4.
Taxpayers" North Carolina individual income tax return for the taxable year 1993, designated as Exhibit PT-5.
Taxpayers" North Carolina individual income tax return for the taxable year 1994, designated as Exhibit PT-6.
Taxpayers" North Carolina individual income tax return for the taxable year 1995, designated as Exhibit PT-7.
Notice of Individual Income Tax Assessment for the taxable year 1993. dated December 30. 1996, designated as Exhibit PT-8.
9. Notice of Individual Income Tax Assessment for the taxable year 1994. dated December 30, 1996. designated as Exhibit PT-9.
10. Notice of Individual Income Tax Assessment for the taxable year 1995, dated December 30, 1996, designated as Exhibit PT-10.
JIl^^^^^^^NO^^^RQUN^EGISTE^^^Aueus^^99^^^^^^^^^^^^^^^265
IN ADDITION
1 1 . Title 1 7, North Carolina Administrative Code. Subchapter 6B, Rule .0605, designated as Exhibit PT-1 1 .
12. Letter from Manager of Office Examination Division to Taxpayers dated December 30, 1996, designated as Exhibit PT-1 2.
13. Undated letter from Taxpayer to Manager of Office Examination Division, designated as Exhibit PT-13.
14. Letter from Caroline A. Smith to Taxpayers dated February 12, 1997, designated as Exhibit PT-14.
15. File Note from Carolina A. Smith dated February 19. 1997. designated as Exhibit PT-15.
16. Letter from Assistant Secretary to Taxpayers dated February 21, 1997, designated as Exhibit PT-1 6.
17. Taxpayers" North Carolina individual income tax return for taxable year 1989, designated as Exhibit PT-1 7.
18. Letter from Michael A. Hannah to Taxpayers dated April 2, 1997, designated as Exhibit PT-18.
FINDINGS OF FACT
The Board considered the following findings of fact made by the Assistant Secretary in determining its decision:
1. Taxpayers timely filed their joint individual income tax returns for the taxable years 1989, 1990, 1991, 1992, 1993, 1994, and
1995.
2. Taxpayers claimed an income tax credit of $1,000 for a solar heating, cooling or hot water system on their income tax returns
for the tax years 1989 through 1994. On their 1995 return, they claimed an income tax credit of $500 for a solar heating, cooling
or hot water system.
3. TheauditordisallowedtaxcreditsofSKOOO, $1,000. and $500 for the tax years of 1993. 1994,and 1995. The Department of
Revenue is prevented by the statute of limitations from disallowing the tax credits claimed by the Taxpayers on their income tax
returns for tax years 1990, 1991, and 1992.
4. Taxpayers were allowed the solar energy tax credit of $ 1 .000 claimed on their 1 989 income tax return.
CONCLUSIONS OF LAW
The Board considered the following conclusions of law made by the Assistant Secretary in the final decision:
1. A tax credit is allowed to an individual who constructs or installs a solar heating, cooling, or hot water system in a building
located in North Carolina which the taxpayer owns or controls. The credit is limited to twenty-five percent of the cost of the
system, up to a maximum credit of $1,000 per system or per year on any single building or for each family unit of a multi-
dwelling which is individualK metered for electric power or natural gas or with a separate furnace for oil heat paid h\ an
occupant. If the credit exceeds the tax due by all other credits, any unused credit may be carried over for up to three succeeding
years.
2. Taxpayers were allowed the maximum solar energy tax credit of $1,000 on their 1989 individual income tax return; therefore,
there is no solar energ\ tax credit to be carried over to the tax years 1990 through 1995.
DECISION
The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. 105-241 .2(b2). After
the Board conducts a hearing this statute provides in pertinent part:
(b2). "The Board shall confirm, modify', reverse, reduce or
increase the assessment or decision of the Secretary."
G.S. 105-151.2 allows a tax credit equal to 25°b of the cost of installing a solar hot water, heating, or cooling system,
"provided that the credit allowed under this section may not exceed one thousand dollars ($1,000) per system or per year on
any single building or for each family dwelling unit of a multi-dwelling building . . ." (Emphasis added). The Taxpayers were allowed
a total credit of $1 .000 as provided for under the statute. Taxpayers were not entitled to the tax credits claimed on their individual
income tax returns for 1993, 1994, and 1995.
The Board having conducted a hearing in this matter and having considered the petition, the Secretary's brief, the record and
the fmal decision of Assistant Secretary, concludes that there exist sufficient evidence in the record, to confirm the Assistant
Secretary's decision as to the assessment of additional income tax and interest assessed against the Taxpayers for tax years 1993.
1994, 1995: however the Board reverses the Assistant Secretary's decision regarding the penalty imposed against the Taxpayers for
taxvears 1993, 1994, and 1995.
NORTH CAROLINA REGISTER Ausitst 3. 1998 13:
26^^^^^^^NOR
IN ADDITION
IT IS THEREFORE ORDERED, that the Board confirms the Assistant Secretary's final decision as to the assessment
of additional income tax and interest assessed against the Taxpayers for tax years 1993. 1994, and 1995. The Board reverses the
Assistant Secretary's final decision concerning the penalty imposed against the Taxpayers and orders that the final decision be
modified accordingly.
Made and entered into this 24th dav of June, 1998.
TAX REVIEW BOARD
s/Harlan E. Boyles, Chairman
State Treasurer
s/Jo Anne San ford
Chair, Utilities Commission
s/Noel L. Allen, Appointed member
13:3 NORTH CAROLINA REGISTER Aueust 3, 1998 267
RULE-MAKING PROCEEDINGS
A Sotice o/ Rule-mukiiii^ Proceedings is a statement of subject matter of the agency's proposed rule making. The agency must
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule.
Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the
section heading ofTemporaiy Rules. .4 Rule-making Agenda published by an agency sen'es as Rule-tnaking Proceedings and
can be found in the Register under the section heading of Rule-making .Agendas. Statutory reference/ G.S. I50B-21.2.
TITLE 10 - DEPARTMENT OF HEALTH
AND HUMAN SERVICES
as a result of this notice of rule-making proceedings and any
comments received on this notice.
CHAPTER 50 - MEDICAL ASSISTANCE
SUBCHAPTER 50B - ELIGIBILITY
DETERMINATION
A Totice of Rule-making Proceedings is hereby given by the
1 V DhlHS - Division of Medical Assistance in accordattce with
G.S. 150B-21.2. The agency shall subsequently publish in the
Resister the text of the rulefs) it proposes to adopt as a result of
this notice of rule-making proceedings and any comtnents
received on this notice.
Citation to Existing Rules Affected by this Rule-Making: 10
NC.4C SOB .031 1. Other rules may be proposed in the course
of the rule-making process.
Citation to Existing Rules Affected by this Rule-Making: No
rules presently exist. New rules will be proposed. Other rules
may be proposed in the course of the rule-making process.
Authority for the rule-making: G.S. 95-242
Statement of the Subject Matter: .Adoption of rules for the
enforcentent of Article 21 of Chapter 95 of the North Carolina
General Statutes.
Reason for Proposed Action: To adopt a set of guidelines for
the initiation, processing, and closing of complaints filed
pursuant to the Retaliatory Employment Discrimination Act.
found at Article 21 of Chapter 95 of the North Carolina General
Statutes.
Authority for the rule-making: G.S. I08A-54: 108A-55:
lOH.A-58: 42 C.F.R. 435.121: 42 C.F.R. 435.210: 42 C.F.R.
435.711: 42 C.F.R. 435.712: 42 CFR. 435.734: 42 C.FR.
435.823: 42 C.FR. 435.840: 42 C.FR. 435.841: 42 C.FR.
435.845: 42 C.FR. 445.850: 42 C.FR. 435.851: 45 C.FR.
233.20: 45 CFR. 233.51: 42 U.S.C 703. 704 1396
Statement of the Subject Matter: To be eligible under some
Medicaid coverage groups, an individual must have countable
resources that do not exceed the reserve limit for that group.
This Rule describes what are countable resources.
Reason for Proposed Action: In part, the rule allows for
excluding from countable resources those resources that are
owned by a person who is incompetent arid for whom there is no
individual with legal authority to access the resources on behalf
of the incompetent person. The amendment will clarify and
further define when an individual's resources are excluded
because he is alleged to be incompetent.
Comment Procedures: Written comments must be delivered or
mailed to Ranee S. Sandy. North Carolina Department of Labor
4 West Edenton Street. Raleigh. NC 27601-1092.
•X y; -K fr •)< -K
•xye-Kyt-x^-x-K-K-K'Tfft
CHAPTER 12 - WAGE AND HOUR
A Totice of Rule-making Proceedings is hereby given by the
1 V North Carolina Department of Labor. Wage and How-
Division in accordance with G.S. 150B-21.2. The agency shall
subsequently publish in the Register the text of the rulefs) it
proposes to adopt as a result of this notice of rule-making
proceedings and any comments received on this notice.
Citation to Existing Rules Affected by this Rule-Making: 13
NCAC 12 .0101. .0303 - .030'. .05o'l - .0502. .0801 - .0802.
Other rules may be proposed in the course of the rule-making
process.
Comment Procedures: Written comments concerning this
rule-making action must he submitted to Portia W. Rochelle.
Rule-making Coordinator Division of Medical .Assistance. 1985
Lmstead Drive. Raleigh. NC 2'603.
TITLE 13 - DEPARTMENT OF LABOR
TV Totice of Rule-making Proceedings is hereby given by the
J. V North Carolina Department of Labor. WORD Division in
accordance with G. S. 150B-2 1.2. The agency shall subsequently
publish in the Resister the text of the rule(s) it proposes to adopt
Authority for the rule-making: G.S. 95-25.19
Statement of the Subject Matter: Rules regarding the
enforcement of the Wage and Hour .Act.
Reason for Proposed Action: To update the Wage and Hour
regulations. .As part of the process of revising these Rules, the
Department proposes a rearrangement of the rule numbers in
certain sections to clarify the rules.
Comment Procedures: Written comments must be delivered or
mailed to Ranee S. Sandy. North Carolina Department of Labor
26S
NORTH CAROLINA REGISTER
Ausust3. 1998
13:3
R ULE-MAKING PROCEEDINGS
4 West Edenton Street, Raleigh. NC 27601-1092.
Creek, Morehead Citv, Carteret County
********************
CHAPTER 13 - BOILER AND PRESSURE
VESSEL
A Totice of Rule-making Proceedings is hereby given by the
1 y North Carolina Department of Labor. Boiler and Pressure
Vessel Division in accordance with G.S. 150B-21.2. The agency
shall subsequently publish in the Register the text of the rule(s)
it proposes to adopt as a result of this notice of rule-making
proceedings and any comments received on this notice.
Citation to Existing Rules AfTected by this Rule-Making: 13
NCAC 13 in its entirety. Other rules may be proposed in the
course of the rule-making process.
Authority for the rule-making: G.S. 95-69.14
Statement of the Subject Matter: Boiler and pressure vessel
rules regarding administration of the Division, enforcement of
standards, and general requirements for the operation of boilers
and pressure vessels.
Reason for Proposed Action: To update and clarify' the
administrative rules regarding the Uniform Boiler and Pressure
Vessel Act.
Reason for Proposed Action: The Town of Morehead City
initiated the no-wake zone pursuant to G.S. 75A-15 to protect
public safety in the area by restricting vessel speed. The
Wildlife Resources Commission may adopt this Rule as a
temporary rule pursuant to S.L. 1997-0403 following this
abbreviated notice.
Comment Procedures: The record will be open for receipt of
written comments from August 3, 1998 to October 4, 1998. Such
written comments must be delivered or mailed to the North
Carolina Wildlife Resources Commission, 512 N. Salisbury
Street, Raleigh, NC 27604-1188.
TITLE 21 - OCCUPATIONAL LICENSING
BOARDS
CHAPTER 8 - BOARD OF CERTIFIED
PUBLIC ACCOUNTANT EXAMINERS
TV Totice of Rule-making Proceedings is hereby given by the
1 V North Carolina State Board of CPA Examiners in
accordance with G.S. 150B-21.2. The agency shall subsequently
publish in the Resister the text of the rule(s) it proposes to adopt
as a result of this notice of rule-making proceedings and any
comments received on this notice.
Comment Procedures: Written comments must be delivered or
mailed to Ranee S. Sandy, North Carolina Department of Labor
4 West Edenton Street, Raleigh, NC 27601-1092.
TITLE 15A - DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
CHAPTER 10 - WILDLIFE RESOURCES
AND WATER SAFETY
SUBCHAPTER lOF - MOTORBOATS AND
WATER SAFETY
A Totice of Rule-making Proceedings is hereby given by the
J. V North Carolina Wildlife Resources Commission in
accordance with G.S. 150B-21.2. The agency shall subsequently
publish in the Register the text of the rule(s) it proposes to adopt
as a result of this notice of rule-making proceedings and any
comments received on this notice.
Citation to Existing Rules Affected by this Rule-Making:
15A NCAC lOF .0330. Other rules may be proposed in the
course of the rule-making process.
Authority for the rule-making: G.S. 75A-3: 75A-15
Statement of the Subject Matter: No Wake Zone - Spooners
Citation to Existing Rules AfTected by this Rule-Making: 21
NCAC 8A .0301, .0310: 8H .0001: 8J .0002, .0007 - .0008,
.0010 - .0011: 8K .0104: 8M: 8N .0208. .0302 - .0303, and
.0307. Other rules may be proposed in the course of the rule-
making process.
Authority for the rule-making: G.S 55B: 57C: 59: 93-1: 93-
3: 93-4: 93-12(2): 93-12(5): 93-12(6): 93-12(7a): 93-12(8a):
93-1 2(8b): 93-1 2(8c): 93-12(9)
Statement of the Subject Matter: The NC State Board of CPA
Examiners proposes to amend and adopt rules relevant to
reciprocal certification, firm registration and ownership,
professional ethics and conduct, and definitions, as needed.
Reason for Proposed Action: To amend and adopt language
resulting from the amended Uniform Accountancy Act, which is
a document that the Board uses as guidance to reflect current
protection of the public and uniform regulation of its licensees.
Comment Procedures: Any person interested in these Rules
may submit comments within 60 days of the date of this
publication by mailing the comments to Robert N. Brooks,
Executive Director. NC State Board of CPA Examiners, PO Box
1282 7, Raleigh, NC 2 7605-282 7.
M
NORTH CAROLINA REGISTER
MHHM
998
PROPOSED RULES
This Section coniains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a
Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the
publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment
period is 60 days for a rule that has a substantial economic impact of at least five million dollars (S5. 000. 000). Statutory
reference: G.S 150B-21.2.
TITLE 10 - DEPARTMENT OF HEALTH
AND HUMAN SERVICES
Notice is hereby given in accordance with G.S. 150B-2L2
that the Division of Facility Services intends to amend rule
cited as 10 NCAC 3R .0214. Notice of Rule-making
Proceedings was published in the Register on October 15. 199~.
Proposed Effective Date: April 1. 1999
A Public Hearing will be conducted at 2:00 p.m. on September
14. 1998 at the Council Building. "01 Barbour Drive, Room
20 f Raleigh. NC 27603.
Reason for Proposed Action: The rule was the subject of a
contested case and is being changed based on the Agency's
conclusions in that case.
Comment Procedures: Persons interested in the rule are
invited to attend the public hearing and make oral comments or
submit written comments. The deadline for submission of all
written comments is 5:00 p.m. on September 14. 1998. Written
comments should be submitted to Jackie Sheppard. Rule-making
Coordinator. Division of Facility Services. PO Box 29530.
Raleigh. NC 2-626-0530. Telephone: 9 19-- 3 3-2342.
Fiscal Note: This Rule does not affect the expenditures or
revenues of state or local government funds. This Rule does not
have a substantial economic impact of at least Jive million
dollars lS5.000.000l in a 12-month period.
CHAPTER 3 - FACILITY SERVICES
SUBCHAPTER 3R - CERTIFICATE OF
NEED REGULATIONS
SECTION .0200 - EXEMPTIONS
(1) it has the same basic technology as the equipment
currentlN in use. although it may possess expanded
capabilities due to technological improvements; and
(2) it is functionalK similar and is used for the same
diagnostic or treatment purposes as the equipment
currently in use and is not used to provide a new
health service; and
(3) the acquisition of the equipment does not result in
more than a 10% increase in patient charges or per
procedure operating expenses within the first twelve
months after the replacement equipment is acquired;
and acquired.
f44 it \sill be located on the same site or campus as the
equipment currentK in use.
(e) Replacement equipment is not comparable to the
equipment being replaced if;
(1) the replacement equipment is new or reconditioned,
the existing equipment %\ as purchased second-hand,
and the replacement equipment is purchased less than
three years after the acquisition of the existing
equipment; or
(2) the replacement equipment is new. the existing
equipment was reconditioned when purchased, and
the replacement equipment is purchased less than
three >ears after the acquisition of the existing
equipment; or
{¥) — the replacement equipment is permanentK fixed
equipment and the existing equipment is one a piece
of mobile equipment which is shared between rvio or
more facilities.; or
f4-K3) the replacement equipment is capable of performing
procedures that could result in the pro\ision of a new
health service or type of procedure that has not been
provided with the existing equipment; or
(#){4J the replacement equipment is purchased and the
existing equipment is leased, unless the lease is a
capital lease.
.0214 REPLACEMENT EQUIPMENT
(a) The purpose of this Rule is to define the terms used in the
definition of "replacement equipment" set forth in G.S. 13 lE-
176(22a).
(b) "Activities essential to acquiring and making operational
the replacement equipment" means those activities which are
indispensable and requisite, absent which the replacement
equipment could not be acquired or made operational.
(c) "Comparable medical equipment" means equipment which
is functionalK similar and which is used for the same diagnostic
or treatment purposes.
(d) Replacement equipment is comparable to the equipment
being replaced if
.Authority- G.S. 131E-1--(1).
TITLE ISA - DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
TV Totice is hereby given in accordance with G.S. 150B-21.2
1 V that the DENR - Emironmental Management Commission
intends to. amend rules cited as 15A NCAC 2D .0405. .0409.
.0503 - .0504. .1201 - .1206. .1208 -.1209. .1601: 2Q .0102 -
.0103. .010-. .0304. .0306. .0309. .0401 - .0402, .0801. .0803:
adopt rules cited as 15A NCAC 2D .0410. .2001 - .2005: 20
.0314 -.0315. .0808: and repeal rules cited as 15A NCAC 2D
'70
SORTH C.4ROLIX4 REGISTER
AususrJ. 1998
13:3
PROPOSED RULES
.1501 -.1504: 2Q. 0511.
Notice of Rule-making Proceedings was published in the
Register on: 15A NCAC 2D .0503 - .0504 - March 15. 1996:
15A NCAC 2D . 1500 - January- 2. 1997: 15A NCAC 2Q .0304.
.0306. .0309, .0314 - April 15. 1997: 15A NCAC 2Q .0102,
.0801.. 0803 -July 15. 1997:
15A NCAC 2Q,0401 - .0402 - August 15, 1997: 15A NCAC 2D
.0405, .0409 - .0410, .1201 -.1206. .1208 - .1209: 2Q .0103,
.0107, .0808 - February 16, 1998: 15A NCAC 2D . 1501-. 1504,
.1601, .2001-.2005: 2Q.0315. .0511 -April 15, 1998.
Proposed Effective Date: April I, 1999 - 15A NCAC 2D
.0405, .0409-0410, .0503 - .0504. .1501 -.1504, .1601, .2001 -
.2005: 2Q .0102 - .0103. .0107, .0401 - .0402, .0801, .0803:
July 1, 1999 - 15A NCAC 2D . 1201 - . 1206. . 1208 - . 1209: 2Q
.0304, .0306, .0309, .0314 - .0315, .0511, .0808.
A Public Hearing will be conducted at 7:00 p.m. on August 20,
1998 at the Arclidale Building, Groundfloor Hearing Room, 512
N. Salisbury Street, Raleigh, NC 27611.
Reason for Proposed Action:
ISA NCAC 2Q .0315, .0511 - are proposed for adoption and
repeal, respectively, to eliminate confusion over which
procedure to follow to add or remove terms in permits to avoid
Title V permitting procedures.
ISA NCAC 2D. 1 201 -.1206, .1208, .1209 - are proposed for
amendment to incorporate federal emission guidelines for
hospital, medical, and infectious waste incinerators.
ISA NCAC 2Q .0107 - is proposed for amendment to allow
more time for the Division to make a decision concerning the
treatment of confidential information and remove the provision
for a preliminary decision.
ISA NCAC 2Q .0801, .0803 - are proposed for amendment to
clarify that potential emissions of hazardous air pollutants that
are also volatile organic compounds may be computed using the
procedures in 2Q . 0803.
ISA NCAC 2Q.0401 - .0402 - are proposed for amendment to
incorporate the federal procedures and requirements of 40 CFR
Part 76, Acid Rain Program.
ISA NCAC 2Q .0103 - is proposed for amendment to add a
definition for "sawmill".
ISA NCAC 2Q .0808 - is proposed for adoption to add an
exclusionaty rule for peak shaving generators.
ISA NCAC 2Q .0304, .0306, .0309 - are proposed for
amendment and ISA NCAC 2Q. 03 14 is proposed for adoption
to incorporate clarifications for the issuance of construction and
operating permits.
ISA NCAC 2D .0S03 - .0S04 - are proposed for amendment to
add definitions for "plant site" and "indirect heat exchanger".
ISA NCAC 2Q .0102 - is proposed for amendment to clarify'
permit exemptions.
ISA NCAC 2D .040S, .0409 - are proposed for amendment and
ISA NCAC 2D .0410 is proposed for adoption to implement
national ambient air quality standards for ozone and particulate
matter
ISA NCAC 2D .2001 - .200S - are proposed for adoption, ISA
NCAC 2D . 1601 is proposed for amendment, and ISA NCAC
2D .ISOl - .IS04 are proposed for repeal to implement the
requirements of transportation conformity.
Comment Procedures: All persons interested in these matters
are invited to attend the public hearings. Any person desiring
to comment for more than three minutes is requested to submit
a written statement for inclusion in the record of proceedings at
the public hearing. The hearing record will remain open until
September 2, 1998 to receive additional written statements.
Comments should be sent to and additional information
concerning the hearing or the proposals may be obtained by
contacting:
Mr Thomas Allen
Division of Air Quality
PO Box 29580
Raleigh, NC 27626-0580
(919) 733-1489 (phone)
(919) 715-7476 (fax)
thom_allen(a},aq. enr state, nc. us (e-mail)
Fiscal Note: These Rules 15A NCAC 2D . 1201 - . 1206. . 1208 -
. 1209 affect the expenditures or revenues of local government
funds.
Fiscal Note: These Rules 15A NCAC 2D .0405. .0409 - .0410,
.0503 - .0504.. 1501 -.1504. .1601. .2001 - .2005: 2Q.0102 -
.0103. .0107, .0304. .0306. .0309. .0314 -.0315. .0401 - .0402.
.0511, .0801, .0803, .0808 do not affect the expenditures or
revenues of state or local government funds. These Rules do not
have a substantial economic impact of at least five million
dollars ($5,000,000) in a 1 2-month period.
CHAPTER 2 - ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 2D - AIR POLLUTION CONTROL
REQUIREMENTS
SECTION .0400 - AMBIENT AIR QUALITY
STANDARDS
.0405 OZONE
The ambient air quality standard for ozone measured by a
reference method based on Appendix D of 40 CFR Part 50 and
designated in accordance with according to 40 CFR Part 53 is
0.12 part 0.08 parts per milhon (235 micrograms per cubic
meter), (ppm). daily ma.ximum 8-hour average. The standard is
attained at an ambient air quality monitoring site when ttie
expected number of days per calendar year with maximum
hourly average of the annual fourth-highest daily maximum 8;
hour average ozone concentrations above 0.12 part per million
(235 micrograms per cubic meter) is equal to or less than 1.0.
concentration is less than or equal to 0.08 parts per million
(ppm) as determined by Appendix H I of 40 CFR Part 50. or
equivalent methods established under 40 CFR Part 53.
Authority G.S 143-21 5.3(a)(1): 143-215. 107(a)(3).
m
mim^mism^^^^m
m
PROPOSED RULES
.0409 PMIO PARTICULATE MATTER
(a) The ambient air quality standards for PMIO particulate
matter are:
(1) 150 micrograms per cubic meter (ug/m'). 24-hour
average concentration; and
(2) 50 micrograms per cubic meter (ug/m). annual
arithmetic mean.
These standards are attained when the expected number of days
standards in Paragraph (a) of this Rule, particulate matter shall
be measured jn the ambient air as PM2.5 (particles with an
aerodynamic diameter less than or equal to a nominal 2.5
micrometers) b\ either:
(1 ) a reference method based on Appendix L of 40 CFR
Part 50 and designed according to 40 CFR Part 53; or
(2) an equivalent method designed according to 40 CFR
Part 53.
per calendar year with a 21 hour average concentration above Authorll}' G.S. 143-2] 5.3(a)(1): 143-215. 107(a)(3).
150 ug/m is equal to or less than one or when the expected
annual arithmetic mean concentration is less than or equal to 50
ug/m'. and when the 99th percentile 24-hour concentration js
less than or equal to 150 ug/m'. as determined in accordance
wi#t according to Appendix K N of 40 CFR Part 50.
(b) For the purpose of determining attainment of the
standards in Paragraph (a) of this Regulation. Rule, particulate
matter shall be measured jn the ambient air as PM 1 0 (particles
with an aerodynamic diameter less than or equal to a nominal 10
micrometers) fey; by either;
(1) a reference method based on Appendix 4 M of 40
CFR Part 50 and designated in accordance with
according to 40 CFR Part 53; or
(2) an equivalent method designated in accordance w ith
according to 40 CFR Part 53.
Authority- G.S. 143-2 15.3(a)(1): 143-215. 10:'(a)(3).
.0410 PIV12.5 PARTICULATE MATTER
(a) The ambient air qualits standards for PIV12.5 particulate
matter are:
( 1 ) 15.0 micrograms per cubic meter (ug/m'). annual
arithmetic mean concentration; and
(2) 65 micrograms per cubic meter (ug/m'). 24-hour
average concentration.
These standards are attained when the annual arithmetic mean
concentration js less than or equal to 15.0 ug/m" and when the
98th percentile 24-hour concentration is less than or equal to 65
ugm'. as determined according to Appendix N of 40 CFR Part
50,
(b) For the purpose of determining attainment of the
SECTION .0500 - EMISSION CONTROL
STANDARDS
.0503
PARTICULATES FROM FUEL BURNING
INDIRECT HEAT EXCHANGERS
(a) For the purpose of this Rule the following definitions shall
apply:
in
"Functionally dependent" means that structures,
buildings or equipment are interconnected through
common process streams. suppK lines, flues, or
stacks.
(2) "Indirect heat exchanger" means anv equipment used
for the alteration of the temperature of one fluid by
the use of another fluid m which the two fluids are
separated by an impervious surface such that there is
no mixing of the two fluids.
(3) "Plant site" means any single or collection of
structures. buildings. facilities. equipment,
installations, or operations which:
(A) are located on one or more adjacent properties.
(B) are under common legal control, and
(C) are functionally dependent in their operations.
(b) The definition contained in Subparagraph (a)(3) of this
Rule does not affect the calculation of the allowable emission
rate of any indirect heat exchanger permitted prior to April L,
1999.
(c) (a) With the exceptions in Rule .0536 of this Section,
emissions of particulate matter from the combustion of a fuel
that are discharged from any stack or chimney into the
atmosphere shall not exceed:
Maximum Heat Input In
Million BTU Hour Btu Hour
Allowable Emission Limit
For Particulate Matter
In Lb/Million B444 Btu
Up to and Including 10
100
1.000
10.000 and Greater
0.60
0.33
0.18
0.10
For a heat input between any two consecutive heat inputs stated
in the preceding table, the allowable emissions of particulate
matter shall be calculated by the equation E = 1 .090 times Q to
the -0.2594 power. E = allowable emission limit for particulate
matter in lb/million BTU. Btu. Q = maximum heat input in
million BTU /hour. Btu hour.
(d) ffe) This Rule applies to installations in which fuel is
burned for the purpose of producing heat or power b\ indirect
heat transfer. Fuels include those such as coal. coke, lignite,
peat, natural gas. and fuel oils, but exclude wood and refuse not
burned as a fuel. When any refuse, products, or bv-products of
a manufacturing process are burned as a fuel rather than refuse,
or in conjunction with an\ fuel, this allowable emission limit
shall appK.
(e) (e) For the purpose of this Rule, the maximum heat input
shall be the total heat content of all fuels which are burned in a
a
itfi^MimH
?. 199,
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m
PROPOSED RULES
fuel burning indirect heat exchanger, of which the combustion
products are emitted through a stack or stacks. The sum of
maximum heat input of all fuel burning indirect heat exchangers
at a plant site which are in operation, under construction, or
permitted pursuant to 1 5 A NCAC 2Q, shall be considered as the
total heat input for the purpose of determining the allowable
emission limit for particulate matter for each fuel burning
indirect heat exchanger. Fuel burning indirect heat exchangers
constructed or permitted after February 1 , 1 983, shall not change
the allowable emission limit of any fuel burning indirect heat
exchanger whose allowable emission limit has previously been
set. The removal of a fuel burning indirect heat exchanger shall
not change the allowable emission limit of any fuel burning
indirect heat exchanger whose allowable emission limit has
previously been established. However, for any fijel burning
indirect heat exchanger constructed after, or in conjunction with,
the removal of another fuel burning indirect heat exchanger at
the plant site, the maximum heat input of the removed fuel
burning indirect heat exchanger shall no longer be considered in
the determination of the allowable emission limit of any fuel
burning indirect heat exchanger constructed after or in
conjunction with the removal. For the purposes of this
Paragraph, refuse not burned as a fuel and wood shall not be
considered a fiiel. For residential facilities or institutions (such
as military and educational) whose primary fuel burning capacity
is for comfort heat, only those fuel burning indirect heat
exchangers located in the same power plant or building or
otherwise physically interconnected (such as common flues,
steam, or power distribution line) shall be used to determine the
total heat input.
(f) (d) The emission limit for fiiel burning equipment that
bums both wood and other fuels in combination, or for wood
and other fuel burning equipment that is operated such that
emissions are measured on a combined basis, shall be calculated
by the equation Ec = [(EW)(Ow) + (Eo)(0o)] /Qt.
(1) Ec = the emission limit for combination or combined
emission source(s) in lb/million BTU. Btu.
(2) Ew = plant site emission limit for wood only as
determined by Rule .0504 of this Section in lb/million
BTUt Btu.
(3) Eo = the plant site emission limit for other fuels only
as determined by Paragraphs (a), (b) and (c) of this
Rule in lb/million BTWr Btu.
(4) Qw = the actual wood heat input to the combination
or combined emission source(s) in BTU/hr. Btu/hr.
(5) Qo = the actual other fuels heat input to the
combination or combined emission source(s) in
BTU/hr. Btu/hr.
(6) Qt = Qw + Qo and is the actual total heat input to
combination or combined emission source(s) in
BTU/hr. Btu/hr.
Authority G.S. 143-2 15.3(a)(1); 143-215. 107(a)(5).
.0504 PARTICULATES FROM WOOD BURNING
INDIRECT HEAT EXCHANGERS
(a) For the purpose of this Rule the following definitions shall
apply:
(1) "Functionally dependent" means that structures-
buildings or equipment are interconnected through
common process streams, supply lines, flues, or
stacks.
(2) "Indirect heat exchanger" means any equipment used
for the alteration of the temperature of one fluid by
the use of another fluid in which the two fluids are
separated by an impervious surface such that there is
no mixing of the two fluids.
(3) "Plant site" means any single or collection of
structures, buildings, facilities, equipment,
installations, or operations which:
(A) are located on one or more adjacent properties,
(B) are under common legal control, and
(C) are functionally dependent in their operations.
(b) The definition contained in Subparagraph (a)(3) of this
Rule does not affect the calculation of the allowable emission
rate of any indirect heat exchanger permitted prior to April f,
1999.
(c) (a) Emissions of particulate matter from the combustion
of wood shall not exceed:
Allowable Emission Limit
For Particulate Matter
In Lb/Million BTU Btu
Maximum Heat Input In
Million BTU/Hour Btu/Hour
Up to and Including 10
100
1.000
10,000 and Greater
0.70
0.41
0.25
0.15
For a heat input between any two consecutive heat inputs stated
in the preceding table, the allowable emissions of particulate
matter shall be calculated by the equation E = 1 . 1 698 times Q to
the -0.2230 power. E = allowable emission limit for particulate
matter in lb/million BTU. Btu. Q = Maximum heat input in
million BTU/hour. Btu/hour.
(d) fb) This Regulation Rule applies to installations in which
wood is burned for the primary purpose of producing heat or
power by indirect heat transfer.
(e) (e) For the purpose of this Regulation, Rule, the heat
content of wood shall be 8,000 &TU Btu per pound (dry-weight
basis). The total of maximum heat inputs of all wood burning
indirect heat exchangers at a plant site in operation, under
construction, or with a permit shall be used to determine the
allowable emission limit of a wood burning indirect heat
exchanger. Wood burning indirect heat exchangers constructed
MiWttttil^^^^^^
a
PROPOSED RULES
or permitted after Februar\ 1. 1983. shall not change the
allowable emission limit of any wood burning indirect heat
exchanger whose allowable emission limit has previously been
set.
(f) fd^ The emission limit for fuel burning equipment that
bums both wood and other fuels in combination or for wood and
other fuel burning equipment that is operated such that emissions
are measured on a combination basis shall be calculated by the
procedure described in Paragraph (d) of Rule .0503 of this
Section.
Authority G.S. 1-13-2 lx3(u)(I): 143-2 15. lO^falfS).
SECTION .1200 - CONTROL OF EMISSIONS
FROM INCINERATORS
.1201 PURPOSE AND SCOPE
(a) This Section sets forth rules for the control of the
emissions of air pollutants from incinerators.
(b) The rules in this Section apply to all types of incinerators
as defined by 15A NCAC 2D .0101(19). .0101(20). including
incinerators with heat recovery and industrial incinerators. The
rules in this Section do not appK to afterburners, flares, fume
incinerators, and other similar devices used to reduce the
emissions of air pollutants from processes, whose emissions
shall be regulated as process emissions.
(c) This Section does not apply te toi
( 1 ) afterburners, flares, fume incinerators, and other
similar devices used to reduce emissions of air
pollutants from processes, whose emissions shall be
regulated as process emissions;
(2) an\ boilers or industrial fiimaces that bum waste as a
feetr fuel:
fd4 (JJ This Section does not apply to air curtain bumers.
which shall compK with Section .1900 of this
Subchapter. Subchapter: or
ie) (4J This Section does not apply to incinerators used
to dispose of dead animals or poultry that meet the
following requirements;
(4-) [AJ The incinerator is located on a farm and is
owned and operated b\ the farm owner or by
the farm operator:
(3^ (BJ The incinerator is used soleK' to dispose of
animals or poultry originating on the farm
where the incinerator is located:
(^ {£} The incinerator is not charged at a rate that
exceeds its design capacity : and
(4) iU} The incinerator complies with Rules .0521
(\isible emissions) and .0522 (odorous
emissions) of this Subchapter.
(4) {d} If the incinerator is used solely to cremate pets or if
the emissions of all toxic air pollutants from an incinerator and
associated waste handling and storage are less than the levels
listed in 15A NCAC 2Q .071 1. the incinerator shall be exempt
from Rules .I205(tl through (p). and .1206 of this Section.
Sewage sludge incinerators, sludge incinerators, and municipal
waste combustors at small and large municipal waste combustor
plants plants, and HMIW'ls are not eligible for exemption under
this Paragraph.
(g) (ej If an incinerator can be defined as being more than
one type of incinerator, then the following order shall be used to
determine the standards and requirements to apply: hazardous
waste incinerators, sewage sludge incinerators, sludge
incinerators, municipal waste combustor at a large or small
municipal waste combustor plant, HMlWIs, medical waste
incinerators, crematory incinerators, and other incinerators.
Authority G.S. 143-21 5.3(a)(1); 143-215. 107(aJ(lj,(3j,(4j. (5).
.1202 DEFINITIONS
For the purposes of this Section, the following definitions and
those contained in 40 CFR 60. Subpart Ec, Standards of
Performance for Hospital. Medical, and Infectious Waste
Incinerators for Which Construction is Commenced after June
20, 1996, shall apply:
( 1 ) "Control efficiency" means the mass of a pollutant in
the waste fed to an incinerator minus the mass of that
pollutant in the exit gas from the incinerator stack
divided by the mass of the pollutant in the waste fed
to the incinerator
(2) "Crematory incinerator" means any incinerator located
at a crematory regulated under 21 NCAC 34C that is
used solely for the cremation of human remains.
(3) "Construction and demolition waste" means wood,
paper, and other combustible waste resulting ft-om
construction and demolition projects except for
hazardous waste and asphaltic material.
(4) "Dioxane "Dioxin and Furan" means tetra- through
octa- chlorinated dibenzo-p-dioxins and
dibenzofurans.
(5) "Hazardous waste incinerator" means an incinerator
regulated under ISA NCAC 13A .000! through
.0014. 40 CFR 264.340 to 264.351. Subpart O. or
265.340 to 265.352. Subpart O.
(6) "Hospital, medical and infectious waste incinerator
(HMIWI)" means any device that combusts any
amount of hospital, medical and infectious waste in
which constmction was commenced on or before June
20. 1996. except:
(a) an\ HMIWI required to have a permit under
Section 3005 of the Solid Waste Disposal Act:
(b) an\ p\roKsis unit:
(c) any cement kiln firing hospital waste or
medical and infectious waste:
(d) an\ physical or operational change made to an
existing HMIWI solelv for the purpose of
complying with the emission guidelines for
HMlWIs in Rule .1205 of this Section. These
physical or operational changes are not
considered a modification and do not result in
an existing HMIWI becoming subject to the
provisions of 40 CFR Part 60. Subpart Ec:
(e) an\ HMIWI during periods when onh
pathological waste, low-level radioactive
waste, or chemotherapeutic waste is bumed.
provided that the owner or operator of the
m
iU^WiiMH
.?. 199
m
M
PROPOSED RULES
HMIWI:
(j} notifies the Director of an exemption
claim; and
£ii} i<eeps records on a calendar quarter
basis of the periods of time when only
pathological waste, low-level
radioactive waste, or chemotherapeutic
waste is burned; or
£jQ any co-fired HMIWI, if the owner or operator
oftheco-fired HMIWI:
(i] notifies the Director of an exemption
claim;
(ii) provides an estimate of the relative
weight of hospital, medical and
infectious waste, and other fuels or
wastes to be combusted; and
(iii") keeps records on a calendar quarter
basis of the weight of hospital, medical
and infectious waste combusted, and the
weight of iU other fuels and wastes
combusted at the co-fired HMIWI.
£7j "Large HMIWI" means:
(a) Except as provided jn Sub-item £b} of this
Item:
(j} a HMIWI whose maximum design
waste burning capacity is more than 500
pounds per hour;
(ii) a continuous or intermittent HMIWI
whose maximum charge rate is more
than 500 pounds per hour; or
(iii) a batch HMIWI whose maximum charge
rate is more than 4,000 pounds per day.
(b) The following are not large HMlWls:
tij a continuous or intermittent HMIWI
whose maximum charge rate is less than
or equal to 500 pounds per hour; or
(ii) a batch HMIWI whose maximum charge
rate is less than or equal to 4,000
pounds per day.
(8) "Hospital waste" means discards generated at a
hospital, except unused items returned to the
manufacturer The definition of hospital waste does
not include human corpses, remains, and anatomical
parts that are intended for interment or cremation.
(6) £9J "Large municipal waste combustor plant" means
a municipal waste combustor plant with a municipal
waste combustor aggregate plant capacity that is
greater than 250 tons per day of municipal solid
waste.
(7) "Medical waste incinerator" means any incinerator
regulated under 15A NCAC 13B .1207(3).
(10) "Medical and Infectious waste" means any waste
generated in the diagnosis, treatment, or immunization
of human beings or animals, jn research pertaining
thereto, or in the production or testing of biologicals
that is listed in Sub-items (a)(i) through (vii) of this
Item,
(a) The definition of medical and infectious waste
includes:
ti)
(iii]
tiyj
ivj
cultures and stocks of infectious agents
and associated biologicals, including:
(A) cultures from medical and
pathological laboratories;
(B) cultures and stocks of infectious
agents from research and
industrial laboratories;
(C) wastes from the production of
biologicals;
(D) discarded live and attenuated
vaccines; and
(E) culture dishes and devices used
to transfer, inoculate, and mix
cultures;
human pathological waste, including
tissues, organs, and body parts and body
fluids that are removed during surgery
or autopsy, or other medical procedures,
and specimens of body fluids and their
containers;
human blood and blood products
including:
(A) liquid waste human blood;
(B) products of blood;
(C) items saturated or dripping with
human blood; or
(D) items that were saturated or
dripping with human blood that
are now caked with dried human
blood including serum, plasma,
and other blood components, and
their containers, which were used
or intended for use in either
patient care, testing and
laboratory analysis or the
development of pharmaceuticals.
Intravenous bags are also
included in this category;
sharps that have been used in animal or
human patient care or treatment or in
medical, research, or industrial
laboratories, including hypodermic
needles, syringes (with or without the
attached needle), pasteur pipettes,
scalpel blades, blood vials, needles with
attached tubing, and culture dishes
(regardless of presence of infectious
agents). Also included are other types
of broken or unbroken glassware that
were in contact with infectious agents,
such as used slides and cover slips;
animal waste including contaminated
animal carcasses, body parts, and
bedding of animals that were known to
have been exposed to infectious agents
during research (including research in
veterinary hospitals), production of
ma^mms^u^
t 1^1998
A
PROPOSED RULES
biologicals
or
testing
of
(vU
pharmaceuticals:
isolation wastes including biological
uaste and discarded materials
contaminated with blood, excretions.
(bi
LiiJ
exudates, or secretions from humans
who are isolated to protect others from
certain highh communicable diseases.
or isolated animals knoun to be infected
with highh communicable diseases: and
unused sharps including the following
unused or discarded sharps:
(A) hxpodermic needles:
(B) suture needles:
(C) sxringes: and
(D) scalpel blades.
The definition of medical and infectious \%aste
does not include:
(U hazardous waste identified or listed
under 40 CFR Part 261:
(ii) household waste, as defined in 40 CFR
Part 261.4(b)(1):
(iii) ash from incineration of medical and
infectious waste, once the incineration
process has been completed:
(iv) human corpses, remains, and anatomical
parts that are intended for interment or
cremation: and
(\) domestic sewage materials identified in
40CFR261.4(aHl).
"Medium HMIWT" means;
(a) Except as pro\ided jn Sub-item (b) of this
Item:
IJJ a HMI\M whose maximum design
waste burning capacirs is more than 200
pounds per hour but less than or equal to
500 pounds per hour:
(ii) a continuous or intermittent HMIW'I
whose maximum charge rate js more
than 200 pounds per hour but less than
or equal to 500 pounds per hour: or
(iii) a batch HMIWl whose maximum charge
rate is more than 1.600 pounds per day
but less than or equal to 4.000 pounds
per day.
(b) The following are not medium HVHW'ls:
111 a continuous or intermittent HMIW'I
whose maximum charge rate is less than
or equal to 200 pounds per hour or more
than 500 pounds per hour: or
(ii) a batch HMIW'I whose maximum charge
rate is more than or equal to 4.000
pounds per day or less than or equal to
1.600 pounds per da\.
f^ ( 12) "Municipal waste combustor (MW'C) or
municipal waste combustor unit" means a municipal
waste combustor as defined in 40 CFR 60.5 lb.
(^ ( 13) "Municipal waste combustor plant" means one
( \C\\
f4^
f44^
f4^
(20)
J 1 f,\
(221
or more municipal waste combustor units at the same
location for which construction, modification, or
reconstruction commenced on or before September
20. 1994.
(14) "Municipal waste combustor plant capacit>'"
means the aggregate municipal waste combustor unit
capacit) of all municipal waste combustor units at a
municipal waste combustor plant for which
construction. modification. or reconstruction
commenced on or before September 20. 1994.
(15) "Municipal-t>pe solid waste (MSW)" means
municipal-t\pe solid waste defined in 40 CFR 60.51b.
( 16) "POTW" means a publicK owned treatment
works as defined in 40 CFR 50 1 .2.
( 17) "Same Location" means the same or contiguous
propert> that is under common ownership or control
including properties that are separated onK b> a
street, road. highwaN. or other public right-of-wa\.
Common ownership or control includes properties
that are owned, leased, or operated b\ the same entitv;
parent entit\. subsidian,. subdivision, or an\
combination thereof including any municipalit> or
other governmental unit, or an\ quasi-go\emmental
authority (e.g.. a public utilitv district or regional
waste disposal authorit> ).
(18) "Sewage sludge incinerator" means any
incinerator regulated under 40 CFR Part 503, Subpart
E.
(19) "Sludge incinerator" means an\ incinerator
regulated under Paragraph (a)(4) of Rule . 1 1 1 0 of this
Subchapter but not under 40 CFR Part 503, Subpart
E.
"Small HMIWl" means:
laj
ibj
Except as provided |n Sub-item (b) of this
Item:
111 a HMIW'I whose maximum design
waste burning capacity js less than or
equal to 200 pounds per hour:
(ii) a continuous or intermittent HMIW'I
whose maximum charge rate is less than
or equal to 200 pounds per hour: or
(iii) a batch HMIW'I whose maximum charge
rate is less than or equal to 1,600
pounds per da\ .
The follow ing are not small HMIWTs:
(i) a continuous or intermittent HMIW'I
whose maximum charge rate is more
than 200 pounds per hour: or
(ii) a batch HMIW'I whose maximum charge
rate is more than 1 ,600 pounds per da\.
(21 ) "Small municipal waste combustor plant" means
a municipal waste combustor plant w ith a municipal
waste combustor plant capacity that is greater than
38.8 tons per da> but not more than 250 tons per day
of municipal solid waste.
"Small remote HMIW 1" means any small HMIW I
which is located more than 50 miles from the
boundar\ of the nearest Standard Metropolitan
U6
SORTH CAROLISA REGISTER
August 3. 1998
i
m
PROPOSED RULES
Statistical Area (SMSA) and which bums less than
2,000 pounds per week of hospital, medical and
infectious waste. The 2.000 pound per week
limitation does not apply during performance tests.
(23) "Standard Metropolitan Statistical Area (SMSA)"
means any area listed in OMB Bulletin No. 93-17.
entitled "Revised Statistical Definitions for
Metropolitan Areas" dated July 30, 1993. The
referenced document cited by this Item js hereby
incorporated by reference and does not include
subsequent amendments or editions. A copy of this
document may be obtained from the Division of Air
Quality. PO Box 29580. Raleigh. NC 27626-0580 at
a cost of ten cents ($0.10) per page or may be
obtained through the internet at
"http://www.census.goy/population/estimates/metro-
citv/93mfips.txt".
f4-?) (24) "Total hydrocarbons" means the organic
compounds in the stack exit gas from a sewage sludge
incinerator measured using a flame ionization
detection instrument referenced to propane.
Authority G.S. 143-213: 1 43-2 15.3(a)(1).
.1203 TEST METHODS AND PROCEDURES
(a) The test methods and procedures described in Rule .0501
of this Subchapter and in 40 CFR Part 60 Appendix A and 40
CFR Part 61 Appendix B shall be used to determine compliance
with emission rates. The test method for determining metals
emissions from stationary combustion sources, commonly called
Method 5 (interim), published by the US Environmental
Protection Agency on August 28. 1989. shall be used to
determine emission rates for metals. Method 5 (interim) shall be
used to sample for chromium(Vl), and SW 846 Method 0013
shall be used for the analysis. A copy of Method 5 (interim) and
SW 846 Method 0013 may be obtained from the North Carolina
Division of Air Quality.
(b) The Director may require the owner or operator to test his
incinerator to demonstrate compliance with the emission
standards in Rule .1205 of this Section.
(c) For the emission standards in Rule .1205(b)(5)(A).
(b)(5)(B). .1205(b)(7)(A). (b)(7)(B). (f). and (g) of this Section,
compliance shall be determined by averaging emissions over a
one-hour period.
(d) The owner or operator of a sewage sludge incinerator
shall perform testing to determine pollutant control efficiencies
of any pollution control equipment and obtain information on
operational parameters, including combustion temperature, to be
placed in an air quality permit.
(e) The owner or operator of a municipal waste combustor at
a small or large municipal waste combustor plant shall do
performance testing in accordance with 40 CFR Part 60.58b.
For municipal waste combustor at large municipal waste
combustor plants that achieve a dioxin and furan emission level
less than or equal to 1 5 nanograms per dr>' standard cubic meter
total mass, corrected to seven percent oxygen, the performance
testing shall be performed in accordance with the testing
schedule specified in 40 CFR 60.58b(g)(5)(iii). For municipal
waste combustor at small municipal waste combustor plants that
achieve a dioxin and furan emission level less than or equal to
30.0 nanograms per dry standard cubic meter total mass,
corrected to seven percent oxygen, the performance testing shall
be performed in accordance with the testing schedule specified
in 40 CFR 60.58b(g)(5)(iii).
(0 Referenced document SW-846 "Test Methods for
Evaluating Solid Waste", Third Edition, cited by this Rule is
hereby incorporated by reference and does not include
subsequent amendments or editions. A copy of this document is
available for inspection at the North Carolina Department of
Environment. Health, Environment and Natural Resources
Library located at 512 North Salisbury Street, Raleigh. NC
27603. Copies of this document may be obtained through the
US Government Printing Office. Superintendent of Documents,
PQ Box 371954, Pittsburgh, PA 1 5250-7954, or by calling (202)
783-3238. The cost of this document is three hundred nineteen
dollars ($3 19.00).
Authority G.S. 1 43-21 5.3(a)(1): 143-21 5.107(a)(5).
.1204 REPORTING AND RECORDKEEPING
(a) The reporting and recordkeeping requirements of Rule
.1105 of this Subchapter shall apply to all incinerators in
addition to any reporting and recordkeeping requirements that
may be contained in any other rules.
(b) The owner or operator of an incinerator, except an
incinerator meeting the requirements of 15A NCAC 2D
.1201(e). .1201(c)(4). shall maintain and operate a continuous
temperature monitoring and recording device for the primary
chamber and. where there is a secondary chamber, for the
secondary chamber. The Director may require a temperature
monitoring device for incinerators meeting the requirements of
1 5A NCAC 2D .1201(e). .1201(c)(4). The owner or operator of
an incinerator that has installed air pollution abatement
equipment to reduce emissions of hydrogen chloride shall install,
operate, and maintain continuous monitoring equipment to
measure pH for wet scrubber systems and rate of alkaline
injection for dry scrubber systems. The Director shall require
the owner or operator of an incinerator with a permitted charge
rate of 750 pounds per hour or more to install, operate, and
maintain continuous monitors for oxygen or for carbon
monoxide or both as necessary to determine proper operation of
the incinerator. TTie Director may require the owner or operator
of an incinerator with a permitted charge rate of less than 750
pounds per hour to install, operate, and maintain monitors for
oxygen or for carbon monoxide or both as necessary to
determine proper operation of the incinerator.
(c) In addition to the requirements of Paragraphs (a) and (b)
of this Rule, the owner or operator of a sewage sludge
incinerator shall:
(1) install, operate, and maintain, for each incinerator.
continuous emission monitors to determine the
following:
(A) total hydrocarbon concentration of the
incinerator stack exit gas in accordance with 40
CFR 503.45(a) unless the requirements for
continuously monitoring carbon monoxide as
itfiUlttAiliiii^^i^a
277
PROPOSED RULES
provided in 40 CFR 503.40(c) are satisfied;
(B) ox\gen concentration of the incinerator stack
exit gas; and
(C) moisture content of the incinerator stack exit
gas;
(2) monitor the concentrations of ben,Hium and mercun,
from the sludge fed to the incinerator at least as
frequenth as required under Rule .1110 of this
Subchapter but in no case less than once per \ear;
(3) monitor the concentrations of arsenic, cadmium.
chromium, lead, and nickel in the sewage sludge fed
to the incinerator at least as frequenth as required
under 40 CFR 503.46(a)(2) and (3);
(4) determine mercur\' emissions by use of Method 105
Method 101 or 101 A of 40 CFR Part 6 1 . Appendix B.
where applicable to 40 CFR 61.55(a);
(5) maintain records of all material required under Rule
.1203 and .1204 of this Section in accordance with 40
CFR 503.47; and
(6) for class I sludge management facilities (as defined in
40 CFR 503.9)'^ POTWs (as defined in 40 CFR 50 1 .2)
with a design fiow rate equal to or greater than one
million gallons per da\'. and POTWs that serve a
population of 10.000 people or greater, submit the
information recorded in Subparagraph (c)(4) of this
Rule to the Director on or before Februan. 1 9 of each
\ear.
(d) In addition to the requirements of Paragraphs (a) and (b)
of this Rule, the owner or operator of a small or large municipal
waste combustor plant shall:
(1) install, operate, and maintain, for each municipal
waste combustor. continuous emission monitors to
determine the follow ing:
(A) opacity in accordance with 40 CFR 60.58b(c).
(B) sulfur dioxide in accordance with 40 CFR
60.58b(e).
(C) nitrogen dioxide in accordance with 40 CFR
60.58b(h). (This requirement applies only to
large municipal waste combustor plants).
(2) maintain records of the information listed in 40 CFR
60.59b. Paragraphs (d)( 1) through (d)(15) for a period
of at least fi\e years.
(3) following the initial compliance tests as required
under Rule .1203 of this Section, submit the
information specified in 40 CFR 60.59b. Paragraphs
(f)(1) through (f)(6). in the initial performance test
report.
(4) following the first \ear of municipal combustor
operation, submit an annual report including the
information specified in 40 CFR 60.59b. Paragraphs
(g)(1) through (g)(4). as applicable, no later than
February 1 of each sear follow ing the calendar year in
which the data were collected. Once the unit is
subject to permitting requirements under 1 5A NCAC
2Q. 0500. Title V Procedures, the owner or operator
of an affected facility must submit these reports
semiannually.
(5) submit a semiannual report that includes information
specified in 40 CFR 60.59b. Paragraphs (h)(1)
through (h)(5), for any recorded pollutant or
parameter that does not comply with the pollutant or
parameter limit specified in this Section, according to
the schedule specified in 40 CFR 60.59b(h)(6).
(e) In addition to the requirements of Paragraphs (a) and (b)
of this Rule, the owner or operator of a HMIWl shall comply
with the recording and recordkeeping requirements listed in 40
CFR Part 60.58c(b). (cj, (dj. (el and IfL excluding Subparts
(b)(2)(ii) and (b)(7).
(f) In addition to the requirements of Paragraphs (a), (b). and
(e) of this Rule, the owner or operator of a small remote HMIWI
shall:
( 1 ) maintain records of the annual equipment inspections,
an\ required maintenance, and any repairs not
completed within 10 da\s of an inspection;
(2) submit an annual report containing information
recorded in Subparagraph ( 1 ) of this Paragraph to the
Director no later than 60 da\'s following the sear in
which data were collected. Subsequent reports shall
be sent no later than 12 calendar months following the
previous report. The report shall be signed by the
HMIWI manager; and
(3) submit the reports required b\ Subparagraphs ( 1 ) and
(2) of this Paragraph to the Director semiannually
once the HMIWI is subject to the permitting
procedures of I5A NCAC 2Q .0500. Title V
Procedures.
(g) Waste Management Guidelines. The owner or operator of
a HMIWI shall compK with the requirements of 40 CFR Part
60.55c for the preparation and submittal of a waste management
plan.
(h) Except as provided in Paragraph (jj of this Rule, the
owner or operator of any HMIWI shall compK with the
monitoring requirements in 40 CFR Part 60.57c.
ii) The owner or operator of an\ small remote HMIWI shall:
( 1 ) install, calibrate, maintain, and operate a device for
measuring and recording the temperature of the
secondary chamber on a continuous basis, the output
of which shall be recorded, at a minimum, once every
minute throughout operation.
(2) install, calibrate, maintain, and operate a device which
automatically measures and records the date, time, and
y\ eight of each charge fed into the HMIWI.
(3) obtain monitoring data at aJl times during HMIWI
operation except during periods of monitoring
equipment malfunction, calibration, or repair. At a
minimum, valid monitoring data shall be obtained for
75 percent of the operating hours per calendar quarter
that the HMIWI is combusting hospital, medical and
infectious waste.
{^ (j} All monitoring devices and systems required by this
Rule shall be subject to a quality assurance program approy ed by
the Director. Such quality assurance program shall include
procedures and frequencies for calibration, standards
traceability. operational checks, maintenance, auditing, data
\alidation. and a schedule for implementing the quality
assurance program.
278
NORTH CAROLIXA REGISTE
k
3. 199i
m
PROPOSED RULES
Authority G.S. 143-2 15.3(a)(1): 143-215. 107(a)(4),(5).
.1205 EMISSION STANDARDS
(a) The emission standards in this Rule apply to all
incinerators except where Rule .0524, .11 10, or .1 1 1 1 of this
Subchapter applies except that Subparagraphs (p)(2) and (4) of
this Rule shall control in any event.
(b) Particulate matter
(1) Hazardous waste incinerators shall meet the
particulate matter requirements of 40 CFR 264.343(c).
(2) The emissions of particulate matter from each
municipal waste combustor located at a small
municipal waste combustor plant shall not exceed 70
milligrams per dry standard cubic meter, corrected to
seven percent oxygen.
(3) The emissions of particulate matter from each
municipal waste combustor located at a large
municipal waste combustor plant shall not exceed 27
milligrams per dry standard cubic meter corrected to
seven percent oxygen.
(4) Conical incinerators covered by Rule .0523 of this
Subchapter shall comply with that rule instead of this
Paragraph.
(5) The emissions of particulate matter from a HMIWl
shall not exceed:
Incinerator Size
Allowable Emission Rate (mg/dscm)
[corrected to seven percent oxveenl
Small
115
Medium
69
Large
34
(6) The emissions of particulate matter from any small
remote HMIWI shall not exceed 197 milligrams per
dry standard cubic meter, corrected to seven percent
oxygen.
itS) (7j Any incinerators not covered under
Subparagraphs (1), (2), (3), or (4) (JQ through (6} of
this Paragraph shall comply with one of the following
emission standards for particulate matter:
(A) The emission of particulate matter from any
stack or chimney of an incinerator shall not
exceed:
Refuse Charge (lb/hour)
Allowable Emission Rate (lb/hour)
In Lb/Hour
For Particulate Matter
In Lb/Hour
Oto 100
0.2
200
0.4
500
1.0
1.000
2.0
2,000 and Above
4.0
(B)
For a refuse charge between any two
consecutive rates stated in the preceding table,
the allowable emissions rate for particulate
matter shall be calculated by the equation
E=0.002P. E=allowable emission rate for
particulate matter in lb/hour. P=refuse charge
in lb/hour
Instead of meeting the standards in Part
(b)(5)(A) (7)(A) of this Rtfk; Paragraph, the
owner or operator of an incinerator may choose
to limit particulate emissions from the
incinerator to 0.08 grains per dry standard
cubic foot corrected to 12 percent carbon
dioxide. In order to choose this option, the
owner or operator of the incinerator shall
demonstrate that the particulate ambient air
quality standards will not be violated. To
correct to 12 percent carbon dioxide, the
measured concentration of particulate matter is
multiplied by 12 and divided by the measured
percent carbon dioxide.
(c) Sulfur dioxide.
( 1 ) The emissions of sulfur dioxide from each municipal
waste combustor located at a small municipal waste
tt
mummmims^^^^mk
279
PROPOSED RULES
combustor plant shall be reduced b\ at least 50
percent b\ weight or volume or to no more than 80
parts per million by volume corrected to seven percent
oxNgen (dr\ basis), whichever is less stringent.
Compliance with this emission limit is based on a 24-
hour daily geometric mean.
(2) The emissions of sulfur dioxide from each municipal
waste combustor located at a large municipal waste
combustor plant shall be reduced by at least 75
percent by weight or volume or to no more than 31
parts per million b\' volume corrected to seven percent
oxNgen (dn basis), whichever is less stringent.
Compliance with this emission limit is based on a 24-
hour daily geometric mean.
(3) The emissions of sulfur dioxide from any HMIWI
shall not exceed 55 parts per million corrected to
seven percent oxNgen (dr\ basis).
(3^ (4j An> incinerator not covered under Subparagraphs
(1) and (2) (1) through (3) of this Paragraph shall
comply with Rule .0516 of this Subchapter.
(d) Visible emissions.
(1) The emission limit of opacity from each municipal
waste combustor located at a small or large municipal
waste combustor plant shall not exceed 10 percent (6-
minute average).
(2) Air curtain incinerators shall comply with Rule .1904
of this Subchapter.
(3) On and after the date on which the initial performance
test is completed, the owner or operator of any
HMIWI shall not cause to be discharged into the
atmosphere from the stack of the HMIWI any gases
that exhibit greater than 10 percent opacity (6-minute
block average).
(4^ (4j An\ incinerator not covered under Subparagraphs
(1) and (2) (1) through (3) of this Paragraph shall
compK v\ith Rule .0521 of this Subchapter.
(e) Odorous emissions. Incinerators shall compK with Rule
.0522 of this Subchapter.
(f) Hydrogen chloride.
(1) The emissions of h\drogen chloride from each
municipal waste combustor at small municipal waste
combustor plants shall be reduced b\ at least 50
percent b\ weight or volume or to no more than 250
parts per million b\ volume corrected to seven percent
oxygen (dr\ basis), whichever is less stringent.
(2) The emissions of h\drogen chloride from each
municipal waste combustor at large municipal waste
combustor plants shall be reduced b> at least 95
percent b> weight or volume or to no more than 3 1
parts per million by volume, corrected to se\en
percent oxygen (dry basis), whichever is less
stringent.
(3) Hazardous waste incinerators shall meet the hydrogen
chloride emissions requirements of 40 CFR
264.343(b).
(4) The emissions of h\drogen chloride from an\' small,
medium, or large HMIWI shall be reduced by at least
93 percent by weight or volume or to no more than
100 parts per million by volume corrected to seven
percent oxygen (dry basis), whichever is less
stringent.
(5) The emissions of hydrogen chloride from anv small
remote HMIWI shall not exceed 3100 parts per
million by volume corrected to seven percent oxygen
(dry' basis).
(4^ (j6j Emissions of hydrogen chloride from all other
incinerators shall not exceed four pounds per hour
unless it is reduced by at least 90 percent by weight or
to no more than 50 parts per million by volume
corrected to seven percent oxygen (drv' basis),
(g) Mercury emissions.
(1) Emissions of mercury fi"om each municipal waste
combustor at a small or large municipal yvaste
combustor plant shall be reduced by at least 85
percent by weight or shall not exceed 0.08 milligrams
per dry standard cubic meter, corrected to seven
percent oxygen, whichever is less stringent.
(2) Emissions of mercury from sludge incinerators and
sewage sludge incinerators are regulated under 15A
NCAC2D.rilO.
(3) Emissions of mercury from any small, medium, or
large HMIWI shall be reduced by at least 85 percent
b\ weight or shall not exceed 0.55 milligrams per dry
standard cubic meter, corrected to seven percent
oxygen, whichever is less stringent.
(4) Emissions of mercun. from an\ small remote HMIWI
shall not exceed 7.5 milligrams per dry standard cubic
meter, corrected to seven percent oxygen.
(4) [5j Emissions of mercun. and mercury compounds
from the stack or chimney of a hazardous waste
incinerator incinerator, medical waste incinerator, or
any other type incinerator not identified in
Subparagraphs (g)(1) through (g)(4) of this Rule shall
not exceed 0.032 pounds per hour,
(h) Beryllium Emissions. Beryllium emissions from sludge
incinerators and sewage sludge incinerators shall comply with
15ANCAC .11 10 of this Subchapter,
(i) Lead Emissions.
(1) Emissions of lead from each municipal waste
combustor at a small municipal waste combustor plant
shall not exceed 1.6 milligrams per dry standard cubic
meter, corrected to seven percent oxygen.
Emissions of lead from each municipal waste
combustor at a large municipal waste combustor plant
shall not exceed 0.49 milligrams per dry standard
cubic meter, corrected to seven percent oxygen.
The daily concentration of lead in sey\age sludge fed
to a sewage sludge incinerator shall meet the
requirements specified in 40 CFR 503.43(c).
Emissions of lead from any small, medium, or large
(2)
(3)
14J
m
HMIWI shall be reduced by at least 70 percent by
weight or shall not exceed 1.2 milligrams per dry
standard cubic meter, corrected to seven percent
oxy gen, whichever is less stringent.
Emissions of lead from any small remote HMIWI
shall not exceed 10 milligrams per dry standard cubic
2H0
\OR TH CAROLINA REGISTER
4</»f/vr?. 1998
J±±
^^w
PROPOSED RULES
meter, corrected to seven percent oxygen.
(i) Cadmium Emissions.
(1) Emissions of cadmium from each municipal waste
combustor at a small municipal waste combustor plant
shall not exceed 0.10 milligrams per dry standard
cubic meter, corrected to seven percent oxygen.
(2) Emissions of cadmium from each municipal waste
combustor at a large municipal waste combustor plant
shall not exceed 0.040 milligrams per dry standard
cubic meter, corrected to seven percent oxygen.
(3) Emissions of cadmium from any small, medium, or
large HMIWl shall be reduced by at least 65 percent
by weight or shall not exceed 0. 16 milligrams per dry
standard cubic meter, corrected to seven percent
oxygen, whichever is less stringent.
(4) Emissions of cadmium from any small remote
HMIWI shall not exceed 4 milligrams per dry
standard cubic meter, corrected to seven percent
oxygen.
(k) Other Metal Emissions. The daily concentration of
arsenic, cadmium, chromium, and nickel in sewage sludge fed to
a sewage sludge incinerator shall meet the requirements
specified in 40 CFR 503.43(d).
(1) The owner or operator of an incinerator shall demonstrate
compliance with Section .1 100 of this Subchapter in accordance
with 15ANCAC2Q.0700.
(m) Dioxins and Furans.
(1) The emissions of dioxins and furans from each
municipal waste combustor located at a small
municipal waste combustor plant shall not exceed 125
nanograms per dry standard cubic meter (total mass)
corrected to seven percent oxygen.
(2) The emissions of dioxins and furans from each
municipal waste combustor located at a large
municipal waste combustor plant shall not exceed:
(A) 60 nanograms per dry standard cubic meter
(total mass) corrected to seven percent oxygen
for facilities that employ an electrostatic
precipitator-based emission control system, or
(B) 30 nanograms per dry standard cubic meter
(total mass) corrected to seven percent oxygen
for facilities that do not employ an electrostatic
precipitator-based emission control system.
(3) The emissions of dioxins and furans from any small,
medium, or large HMIWI shall not exceed 125
nanograms per dry standard cubic meter total
dioxins/furans. corrected to seven percent oxygen or
2.3 nanograms per dry standard cubic meter (toxic
equivalency), corrected to seven percent ox>gen.
(4) The emissions of dioxins and furans from any small
remote HMIWI shall not exceed 800 nanograms per
dry standard cubic meter total dioxins/furans,
corrected to seven percent oxygen or 15 nanograms
per dry standard cubic meter (toxic equivalency),
corrected to seven percent oxygen.
(n) Nitrogen oxide.
(1 ) The emissions of nitrogen oxide from each municipal
waste combustor located at a large municipal waste
combustor plant shall not exceed the emission limits
in Table 1 of Paragraph (d) of 40 CFR 60.33b.
Nitrogen oxide emissions averaging is allowed as
specified in Paragraphs (d)(l)(i) through (d)(l)(v) of
40 CFR 60.33b. Nitrogen oxide emissions control is
not required for municipal waste combustors located
at small municipal waste combustor plants.
(2) The emissions of nitrogen oxides from any HMIWI
shall not exceed 250 parts per million by volume
corrected to seven percent oxygen (dry basis).
(o) Fugitive ash.
( 1 ) On or after the date on which the initial performance
test is completed, no owner or operator of a
municipal waste combustor located at a small or large
municipal waste combustor plant shall cause to be
discharged to the atmosphere visible emissions of
combustion ash from an ash conveying system
(including conveyor transfer points) in excess of five
percent of the observation period (i.e., nine minutes
per three-hour period), as determined by EPA
Reference Method 22 observations as specified in 40
CFR 60.58b(k). except as provided in Subparagraphs
(2) and (3) of this Paragraph.
(2) The emission limit specified in Subparagraph (1) of
this Paragraph covers visible emissions discharged to
the atmosphere from buildings or enclosures, not the
visible emissions discharged inside of the buildings or
enclosures, of ash conveying systems.
(3) The provisions specified in Subparagraph (1 ) of this
Paragraph do not apply during maintenance and repair
of ash conveying systems.
(p) Ambient standards.
( 1 ) In addition to the ambient air quality standards in
Section .0400 of this Subchapter, the following
ambient air quality standards, which are an annual
average, in milligrams per cubic meter at 77° F (25°
C) and 29.92 inches (760 mm) of mercury pressure
shall apply aggregately to all incinerators at a facility:
(A) arsenic and compounds 2.3x10"'
(B) beryllium and compounds 4.1x10"
(C) cadmium and compounds 5.5x10"
(D) chromium(Vl) and compounds 8.3x10"*
(2) When Subparagraph ( I ) of this Paragraph and either
Rule .0524, .1110, or .1111 of this Subchapter
regulate the same pollutant, the more restrictive
provision for each pollutant shall apply,
notwithstanding provisions of Rule .0524, .1110, or
.1111 of this Subchapter to the contrary.
(3) The owner or operator of a facility with incinerators
shall demonstrate compliance with the ambient
standards in Parts (1)(A) through (D) of this
Paragraph by following the procedures set out in Rule
.1106 of this Subchapter. Modeling demonstrations
shall comply with the requirements of Rule .0533 of
this Subchapter.
(4) The emission rates computed or used under
Subparagraph (3) of this Paragraph that demonstrate
compliance with the ambient standards under
ML
NORTH CARPI INA RFC.ISTFR Au.u.f ,. 199S
2S,
PROPOSED RULES
Subparagraph ( 1 ) of this Paragraph shall be placed in
the permit for the facility with incinerators as their
allowable emission limits unless Rule .0524. . 1 1 1 0 or
.1111 of this Subchapter requires more restrictive
rates.
(q) Carbon Monoxide. The emissions of carbon monoxide
from any HMIWI shall not exceed 40 parts per million by
volume, corrected to seven percent ox\gen (dry basis).
Authority G.S. 143-21 5. 3(a)(l ): 143-215. 107(a)(3). (4>.(5}.
.1206 OPERATIONAL STANDARDS
(a) The operational standards in this Rule do not apply to
incinerators where operational standards in Rule .0524. .1110,
or . 1 1 1 1 of this Subchapter apply.
(b) Hazardous waste incinerators. Hazardous waste
incinerators shall comply with 15A NCAC 13A .0001 through
.0014. which are administered and enforced by the Division of
Waste Management.
(c) Medical waste incinerators. Medical waste incinerators
shall meet the following requirements:
fl-) — The secondar> chamber temperature shall be at least
(34 — Gases generated by the combustion shall be subjected
to a minimum temperature of 1800*^F for a period of
not less than one second.
Medical waste incinerators shall comply with 15A NCAC 13B
.1207(3) and any other pertinent parts of 1 5 A NCAC 1 3B . 1 200.
which are administered and enforced by the Division of Waste
Management.
(c) Hospital. Medical and Infectious Waste Incinerators.
Each small remote HMIWI shall have an initial equipment
inspection b\ July I. 2000. and an annual inspection each year
thereafter.
( 1 ) At a minimum, the inspection shall include all the
elements listed in 40 CFR 60.36e(a)( I )(i) through
(xvii).
(2) Any necessarN repairs found during the inspection
shall be completed within 10 operating da\s of the
inspection unless the owner or operator submits a
written request to the Director for an extension of the
1 0 operating day period. The Director shall grant the
extension if:
(A) the owner or operator of the small remote
HMIWI demonstrates that achie\ing
compliance by the time allowed under this
Subparagraph is not feasible, and
(B) the Director does not extend the time allowed
for compliance by more than 30 da\'s following
the receipt of the written request.
(d) The owner or operator of any HMIWI. except small
remote HMIWI. subject to thus Section shall compK with the
compliance and performance testing requirements of 40 CFR
Part 60.56c. excluding the fugitive emissions testing
requirements under 60.56c(b)( 12) and (c)(3).
(e) The owner or operator of an> small remote HMIWI shall
compK the following compliance and performance testing
requirements:
( 1) conduct the performance testing requirements in 40
CFR 60.56c(a). (b)(1) through (b)(9). (b)(in
(mercur\ onlv). and (c)(1). The 2.000 pound per
week limitation does not apply during performance
tests;
(2) establish maximum charge rate and minimum
secondary chamber temperature as site-specific
operating parameters during the initial performance
test to determine compliance with applicable emission
limits; and
(3) following the date on which the initial performance
test is completed, ensure that the HMIWI does not
operate above the maximum charge rate or below the
minimum secondary chamber temperature measured
as three hour rolling averages, calculated each hour as
the average of aH previous three operating hours, at al]
times except during periods of start-up. shut-down and
malfunction. Operating parameter limits do not apply
during performance tests. Operation above the
maximum charge rate or below the minimum
secondary' chamber temperature shall constitute a
violation of the established operating parameters.
tf) Except as provided in Paragraph (g) of this Rule, operation
of the HMIWI above the maximum charge rate and below the
minimum secondary temperature, each measured on a three hour
rolling average, simultaneously shall constitute a violation of the
PM. CO. and dioxin/furan emission limits.
(g) The owner or operator of a HMIWI may conduct a repeat
performance test within 30 days of violation of applicable
operating parameters to demonstrate that the HMIWI js not in
violation of the applicable emission limits. Repeat performance
tests conducted pursuant to this Paragraph must be conducted
using the identical operating parameters that indicated a violation
under Paragraph (f) of this Rule.
(4) Ih} Municipal waste combustor plants. Each municipal
waste combustor located at a small or large municipal waste
combustor plant shall meet the following operational standard:
standards:
(1) The concentration of carbon monoxide at the
combustor outlet shall not exceed the concentration in
Table 3 of Paragraph (a) of 40 CFR 60.34b. The
combustor technology named in this table is defined
in 40 CFR 60.5 lb. ^'
(2) The load level shall not exceed 110 percent of the
maximum demonstrated municipal waste combustor
unit load, except as specified in Paragraphs (b)( 1 ) and
(b)(2) of 40 CFR 60.53b. The maximum
demonstrated municipal waste combustor unit load is
defined in 40 CFR 60.51b and the averaging time is
specified under 40 CFR 60.58b(i).
(3) The temperature at which the combustor operates,
measured at the particulate matter control device inlet,
shall not exceed 63 ° Fahrenheit F above the maximum
demonstrated particulate matter control device
temperature, except as specified in Paragraphs (c)( I )
and (c)(2) of 40 CFR 60.53b. The maximum
demonstrated particulate matter control device
temperature is defined in 40 CFR 60.51b and the
282
SORTH CAROLINA REGISTER
hm^
i
WF»^
PROPOSED RULES
averaging time is specified under 40 CFR 60.58b(i).
(e) tij Sludge incinerators. The combustion temperature in
a sludge incinerator shall not be less than 1200°F. The
maximum oxygen content of the exit gas from a sludge
incinerator stack shall be:
(1) 12 percent (dry basis) for a multiple hearth sludge
incinerator,
(2) seven percent (dr>' basis) for a fluidized bed sludge
incinerator,
(3) nine percent (dry basis) for an electric sludge
incinerator, and
(4) 12 percent (dry basis) for a rotary kiln sludge
incinerator.
(4^ (jj Sewage sludge incinerators.
( 1 ) The maximum combustion temperature for a sewage
sludge incinerator shall be placed in the permit and
based on information obtained during the performance
test of the sewage sludge incinerator to determine
pollutant control efficiencies.
(2) The values for the operational parameters for the
sewage sludge incinerator air pollution control
device(s) shall be placed in the permit and be based on
information obtained during the performance test of
the sewage sludge incinerator to determine pollutant
control efficiencies.
(3) The monthly average concentration for total
hydrocarbons, or carbon monoxide as provided in 40
CFR 503. 40(c), in the exit gas from a sewage sludge
incinerator stack, corrected to zero percent moisture
and seven percent oxygen as specified in 40 CFR
503.44. shall not exceed 100 parts per million on a
volumetric basis using the continuous emission
monitor required in Rule .1204(c)(1) of this Section.
(g) (kj Cremator> incinerators. Gases generated b> the
combustion shall be subjected to a minimum temperature of
1600°F for a period of not less than one second.
(to tli Other incinerators. All incinerators not covered under
Paragraphs (a) through fg) £k} of this Rule shall meet the
following requirement: Gases generated b\ the combustion shall
be subjected to a minimum temperature of 1 800 "F for a period
of not less than one second. The temperature of 1 800 " F shal 1 be
maintained at least 55 minutes out of each 60-minute period, but
at no time shall the temperature go below 1600°F.
(4) (m} Except during start-up where the procedure has been
approved in accordance with Rule .0535(g) of this Subchapter,
waste material shall not be loaded into any incinerators covered
under Paragraph (c). (d), (g), or (i) (h), (k], or (1) of thjs Rule
when the temperature is below the minimum required
temperature. Start-up procedures may be determined on a case-
by-case basis in accordance with Rule .0535(g) of this
Subchapter. Incinerators covered under Paragraph (c), (d), (g),
or (i) (h), (k), or (I) of this Rule shall have automatic auxiliary
burners that are capable of maintaining the required minimum
temperature in the secondary chamber excluding the heat content
of the wastes.
Authorities. N3-2I5.3(aJ(lJ: 143-215. 107(a)(5).
.1208 OPERATOR TRAINING ANDCERTIFICATION
(a) Municipal Waste Combustors.
(1) By January 1 , 2000, or six months after the date of
startup of a municipal waste combustor located at a
small municipal waste combustor plant, whichever is
later, and by July 1 , 1 999 or six months after the date
of startup of a municipal waste combustor located at
a large municipal waste combustor plant, whichever is
later:
(4-) £Aj Each facilit\' operator and shift supervisor
of a municipal waste combustor shall obtain
and maintain a current provisional operator
certification from the American Society of
Mechanical Engineers (ASME QRO-1-1994).
(3^ (Bj Each facility operator and shift supervisor
of a municipal waste combustor shall have
completed full certification or shall have
scheduled a full certification exam with the
American Society of Mechanical Engineers
(ASMEQRO-l-1'994).
(34 IC} The owner or operator of a small or large
municipal waste combustor plant shall not
allow the facility to be operated at any times
time unless one of the following persons is on
dut>' at the affected facility:
(A^ (jj a fully certified chief facility
operator.
(©) tiU a provisionally certified chief
facility operator who is scheduled to
take fijll certification exam according to
the schedule specified in Subparagraph
(2) of this Paragraph, Part (13) of this
Subparagraph,
(Gj (jiiJ a fully certified shift supervisor, or
(B) (iv) a provisionally certified shift
supervisor who is scheduled to take the
full certification exam according to the
schedule specified in Subparagraph (2)
of this Paragraph. Part (B) of this
Subparagraph.
If one of the persons listed in this
Subparagraph Part leaves the affected facility
during their operating shift, a provisionally
certified control room operator who is onsite at
the affected facility may fulfill the
requirements in this Subparagraph. Part.
fb) (2} The owner or operator of a municipal waste
combustor located at a small or large municipal waste
combustor plant shall develop and update on a yearly
basis a site-specific operating manual that shall at the
minimum address the elements of municipal waste
combustor unit operation specified in 10 CFR 60.5'lb
Paragraphs (e)( 1 ) through (o)(ll). (e)(ll)of40 CFR
60.54b.
(e) (3} By July 1, 1999, or six months after the date of
startup of a municipal waste combustor located at a
small or large municipal waste combustor plant,
whichever is later, the owner or operator of the
3^tt
mMMimmmim^^miii^ML
283
PROPOSED RULES
municipal waste combustor plant shall compK with
Subparagraphs (I) to (3) of this Paragraph, the
following requirements:
(4^ (Aj All chief facility operators, shift
supervisors, and control room operators shall
complete the EPA municipal waste combustor
training course.
{A) (_ij The requirements specified in
Subparagraph ( 1 ) of this Paragraph Part
(A) of this Subparagraph shall not appK
to chief facilit> operators, shift
supervisors, and control room operators
who ha\e obtained full certification
from the American Societ\' of
Mechanical Engineers on or before JuK
1.1998.
(B^ liU The owner or operator may request
that the Administrator wai\e the
requirement specified in Subparagraph
( 1 ) of this Paragraph Part (A) of this
Subparagraph for chief facilitv
operators, shift supervisors, and control
room operators who ha\e obtained
provisional certification from the
American Society of Mechanical
Engineers on or before JuK 1 . 1 998.
(3-) [Bj The owner or operator of a municipal
waste combustor located at a small or large
municipal waste combustor plant shall establish
a training program to re\iew the operating
manual, according to the schedule specified in
Parts (A) and (B) of this Subparagraph.
Subparts (jj and [hj of thjs Part, w ith each
person who has responsibilities affecting the
operation of an affected facilitv. including the
chief facilitv operators, shift supervisors.
control room operators, ash handlers,
maintenance personnel, and crane-load
handlers.
{A) (Ij Each person specified in
Subparagraph (c)(2) of this Rule Part
i^ of this Subparagraph shall undergo
initial training no later than the date
specified in Subparts — (c)(2)(A)(i).
(c)(2)(B)(ii). or (c)(2)(C)(iii) of this
R«+er Sub-subparts UQ through (111) of
this Subpart, \s hichever is later,
(i) (JQ The date six months after the
date of startup of the affected
facilitv';
fm liU JuK 1, 1999: or
f+4+) (111) The date prior to the day
when the person assumes
responsibilities affecting
municipal waste combustor unit
operation.
(6-) (ii) .AnnualK, following the initial
training required b\ Part (c)(2)(A) of
this Rule. Subpart (i) of this Part.
(^ (Cj The operating manual required by
Paragraph (c) of this Rule Subparagraph (2) of
this Paragraph shall be kept in a readiK
accessible location for all persons required to
undergo training under Subparagraph (c)(2) of
this Paragraph. Part (B) of this Subparagraph.
The operating manual and records of training
shall be available for inspection by the
personnel of the Division on request.
{4) [4} The referenced ASME exam in this Rule is
hereb\ incorporated bv reference and includes
subsequent amendments and editions. Copies of the
referenced ASME exam may be obtained from the
American Societv' of Mechanical Engineers (ASME).
22 Lav\' Drive. Fairfield, NJ 07007, at a cost of forty-
nine dollars (S49.00).
(b) Hospital, Medical and Infectious Waste Incinerators.
(1) The owner or operator of a HMIWI shall not allow the
HMIWI to operate at any time unless a fullv trained
and qualified HMIWI operator is accessible, either at
the facilitv or available within one hour. The trained
and qualified HMIWI operator may operate the
HMIWI directlv or be the direct supervisor on one or
more HMIWI operators.
(2) Operator training and qualification shall be obtained
by completing the requirements of Paragraphs (c)
through (g) of 40 CFR Part 60.53c.
(3) The owTier or operator of a HMIWI shall maintain, at
the facility, all items required b\ Subparagraphs (h)( 1 )
through (h)( 10) of 40 CFR Part 60.53c.
(4) The owner or operator of a HMIWI shall establish a
program for reviewing the information required by
Subparagraph (3 ) of this Paragraph annually \\ ith each
HMIWT operator. The initial revieys of the
information shall be conducted by January L 2000.
Subsequent reyiews of the information shall be
conducted annually.
(5) The information required by Subparagraph (3) of this
Paragraph shall be kept in a readily accessible location
for ail HMIWI operators. This information, along
yvith records of training shall be a\ailable for
inspection by Division personnel upon request.
(6) All HMIWI operators shall be in compliance yvith this
Paragraph bv July 1,2000.
Authohn-G.S. 143-215. 3/a/II): 143-21 5. W-(a)(10).
.1209 COMPLIANCE SCHEDULES
(a) Except for any municipal ysaste combustor located at a
small or large municipal waste combustor plant, plant or any
HMIWI. the oyvner or operator of any incinerator for which
construction began after September 30, 1991, shall be in
compliance with this Section or Rule .1110 of this Subchapter,
yvhichey er is applicable, before beginning operation.
(b) Municipal Waste Combustors.
{%^ OJ Tne owner or operator of a large municipal waste
combustor plant shall choose one of the folloy\ing
tt
\i
WU^B^ffiH
Ai^a
PROPOSED RULES
three compliance schedule options:
(4} iAJ comply with all the requirements or close
before July 1, 1999; er
(3) (Bj comply with all the requirements after one
year but before three years following the date
of issuance of a revised construction and
operation permit, if permit modification is
required, or after July 1, 1999 but before July
1, 2001, if a permit modification is not
required. If this option is chosen, then the
owner or operator of the facility shall submit to
the Director measurable and enforceable
incremental steps of progress towards
compliance which include:
(A) tij a date by which contracts for the
emission control system or equipment
shall be awarded or orders issued for
purchase of component parts;
(B) in} a date by which on site
construction, installation, or
modification of emission control
equipment shall begin;
(G) (iii) a date by which on site
construction, installation. or
modification of emission control
equipment shall be completed;
(B) £iyj a date for initial startup of
emissions control equipment;
(fi) (vj a date for initial performance test(s)
of emission control equipment; and
(F) (vi) a date by which the facility shall be
in compliance with this Section, which
shall be no later than three years from
the issuance of the permit, permit; or
{¥> (Cj close between July 1, 1999 and July 1,
200 1 . If this option is chosen then the owner
or operator of the facility shall submit to the
Director a closure agreement which includes
the date of the plant closure,
(e) {2} Theowneroroperatorof a small municipal waste
combustor plant shall comply with all requirements, or
close, within three years following the date of
issuance of a revised construction and operation
permit, if a permit modification is required, or by July
1, 2001, if a permit modification is not required.
(d) (3} All municipal waste combustors located within
large municipal waste combustor plant for which
construction, modification, or reconstruction
commenced after June 26, 1 987, but before September
19, 1994, shall comply with the emission limit for
mercury specified in Paragraph (g)(2) (g)(1) of Rule
.1205 of this Section and the emission limit for dioxin
and furan specified in Paragraph (m)(2) of Rule .1205
of this Section within one year following issuance of
a revised construction and operation permit, if a
permit modification is required, or by July 1. 1999,
whichever is later.
(e) (4j TTie owner or operator shall certify to the Director
within five days after the deadline, for each increment
of progress, whether the required increment of
progress has been met.
(c) Hospital, Medical, and Infectious Waste Incinerators.
(1) Title V Application Date. All HMlWI's subject to
these rules shall have submitted an application for a
permit under the procedures of 1 5 A NCAC 20 .0500.
Title V Procedures, by January 1, 2000.
(2) Final Compliance Date. Except for those HMIWIs
described jn Subparagraphs (3) and (4) of this
Paragraph, all HMIWIs subject to this Rule shall be in
compliance with this Rule or close on or before July
1,2000.
(3) Installation of Air Pollution Control Equipment. Any
HMIWI planning to install the necessarv air pollution
control equipment to comply with the emission
standards in Rule .1205 of this Section shall be in
compliance with Rule .1205 of tliis Section by
September 15. 2002. If this option is chosen, then the
owner or operator of the HMIWI shall submit to the
Director measurable and enforceable incremental
steps of progress towards compliance which include:
(A) the submission of a petition for site specific
operating parameters under 40 CFR 63.56c(i);
the obtaining of services of an architectural and
engineering firm regarding the air pollution
control device(s);
the obtaining of design drawings of tlie air
pollution control device(s);
the ordering of air pollution control device(s);
the obtaining of the major components of the
air pollution control device(s);
the initiation of site preparation for the
installation of the air pollution control
device(s);
the initiation of installation of the air pollution
control device(s);
the initial startup of the air pollution control
device(s); and
the initial compliance test(s) of the air pollution
control device(s).
(4) Petition for Extension of Final Compliance Date.
(A) The owner or operator of an affected HMIWI
may petition the Director for an extension of
the compliance deadline of Subparagraph (2)
of this Paragraph provided that the following
information is submitted by January 1. 2000. to
allow the Director adequate time to grant or
deny the extension by July 1. 2000:
(jj documentation of the analyses
undertaken to support the need for an
extension, including an explanation of
why up to July 1, 2002 is sufficient time
to comply with this Rule while July 1,
2000 is not sufficient. The
documentation shall also include an
evaluation of the option to transport the
waste offsite to a commercial medical
(m
(Cj
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ID
m
m
'3:3
MmammMmM,m^mmMi^
A
PROPOSED RULES
W-
uaste treatment and disposal facilit> on a temporan or
permanent bases: and
(ii) documentation of the measurable and
enforceable incremental steps of
progress listed in Subparagraph (3) of
this Paragraph to be taken towards
compliance w ith the emission standards
in Rule .1205 of this Section.
(B) The Director ma\ grant the extension if all the
requirements in Part (A) of this Subparagraph
are met.
(C) If the extension is granted, the HMIWI shall be
in compliance with this Section bv July \^
2002.
Authority G.S. 143-215. 3(a)(1): 143-215. 10~(a)(4). (5}.
SECTION .1500 - TRANSPORTATION CONFORMITY
.1501 PURPOSE, SCOPE AND APPLICABILITY
(a) The purpose of this Section is to assure the conformity of
transportation plans, programs, and projects that are developed.
funded, or approved b\ — the United States Department of .1503
Transportation and b\ metropolitan planning organizations or
other recipients of funds under Title 23 U.S.C. or the Federal
.1502 DEFINITIONS
For the purposes of this Section, the definitions contained in
'10 CFR 5 1 .302 and the following definitions appK"
"Consultation" means that one part\ confers with
another identified part>'. provides all information
necessap. to that part> needed for meaningful input,
and considers and responds to the views of that party
in a timely, substantive written manner prior to any
final decision. At least rvs'o vs'ooks shall be allowed to
submit comments during consultation (except for
notification of federal agencies and actions specified
in 10 CFR 5 1 .402 that onl\ require notification) and
such comments and written responses shall be made
part of the final document.
(3^ "State or local project" means any highway or transit
project which is proposed to receive onl\ funding
assistance (receives no federal funding) or approval
through the State or any local transportation program.
.4ulhoht\-G.S. 143-215. 3(a)(1): 143-215. W(a)(10).
TRANSPORTATION CONFORMITY
DETERMINATION
(a) Conformity analyses, determinations, and redeterminations
Transit Act (49 U.S.C. 1601 et seq.). or State or Local only for transportation plans, transportation improvement programs-
sources of funds, with all plans required of areas designated as FHWA FTA projects, and State or local projects shall be made
nonattainment or maintenance under 10 CFR 8 1 .331 and listed according to the requirements of 40 CFR 51.100 and shall
in Paragraph (b) or (c) of this Rule.
comply with the applicable requirements of 40 CFR 5 1 .456 and
(b) This Section applies to the emissions of volatile organic 5 1 .458. — For the purposes of this Rule. State or local projects
shall be subject to the same requirements under 10 CFR Part 5 1
compounds and nitrogen oxides in the following areas:
fH Davidson County.
f3-) Durham Counry.
(5-) Forsyth County.
(-4-) Gaston Countv.
iS^ Guilford County.
(4^ Mecklenburg County.
^7^ Wake County.
f8) Dutch\ ille Township in Granville County, and
as FHWA FTA projects
(^
Before — making — a — con form its — determination. — the
metropolitan — planning — organizations. — leeal — transportation
departments. North Carolina Department of Transportation.
United States Department of Transportation, the Division of
Environmental Management, local air pollution control agencies,
and United States Environmental Protection Agency shall
consult with each other on matters described in — 10 CFR
{^ — that part of Davie County bounded by the Yadkin 51. '102(c). Consultation shall begin as early as possible in the
River. Dutchmans Creek. North Carolina Highway development of the emissions analysis used to support a
801. Fulton Creek, and back to the Yadkin River,
(c) This Section applies to the emissions of carbon monoxide
in the following areas:
(4-) Durham County.
(2^ Forsyth County.
{^ Mecklenburg County, and
(4^ Wake County.
conformity determination. — The agency that performs the
emissions analysis shall make the analysis available to the
Division of Environmental Management and the general public
for comments: at least two weeks shall be allovsed for review
and comment on the emissions analysis. — The agency that
performs the emissions analysis shall address all comments
received and these comments and responses thereto shall be
(d) This Section applies, in the areas identified in Paragraph included in the final document. In the event that the Division of
Enxironmental Management disagrees with the resolution of its
comments, the conflict may be escalated to the Governor within
11 dass and shall be resolved in accordance with 40 CFR
(b) or (c) of this Rule for the pollutants identified in Paragraph
(b) or (c) of this Rule, to the adoption, acceptance, approval, or
support of transportation plans, transportation improvement
programs, and FHWA FTj'\ projects for which conformit;> 5 1 .102(d). The 1 1 day appeal period shall begin w hen the North
determinations are required under 10 CFR 51.30 1 and all other
State or locally only funded transportation projects w ith such
exceptions as allowed by 10 CFR 51.301(c). 51. 160. or 51.462.
.Authorities. 143-215. 3(a)(1): 143-215. 10~(a)(10).
Carolina Department of Transportation or the metropolitan
planning organization notifies the Director in writing of the
resolution of the comments. Any consultation undertaken after
the conformity determination is made shall include the Division
of Environmental Management.
286
\ORTH CAROLIX4 REGISTER
Augusts, 1998
13:
PROPOSED RULES
(c) The agency that performs the conformit>' analysis shall
notify' the Division of Environmental Management of:
(4^ — any changes in planning or analysis assumptions
(including land use and vehicle miles traveled (VMT)
forecasts), and
(3) — any revisions to transportation plans or transportation
improvement plans that add, dolote. or change projects
that require a now emissions analysis (including
design scope and dates).
The agency that performs the conformity analysis shall allow the
Division of Environmental Management at least two weeks to
review and comment on the proposed change. Comments made
by the Division of Environmental Management and responses
thereto made by the agency shall become part of the final
planning document.
(d) Transportation plans shall satisfy the requirements of ^0
CFR — 51.404. Transportation — plans — an^ — transportation
improvement programs shall satisiy' the fiscal constraints
specified in "10 CFR 51.^08. Transportation plans, programs,
and — FHWA/FTA — projects — shaH — satisfy' — the — applicable
requirements of '10 CFR 5 1 .4 1 0 through 5 1 .448.
(e) No recipient of federal funds designated under Title 23
U.S.C. or the Federal Transit Act shall adopt or approve, nor any
other person construct, a regionally significant highway or transit
project, regardless of funding source, unless there is a currently
conforming transportation plan and transportation improvement
program consistent with the requirements of 40 CFR 5 1 .'120 and
the project conforms with the applicable implementation plan
consistent with the requirements of '10 CFR 51.'150.
(f) The degree of specificity required in a transportation plan
and the specific travel network assumed for air qualit>' modeling
shall not preclude the consideration of alternatives in the
National Environmental — Policy Act of 1969 process, in
accordance with '10 CFR 5 1 .'106.
(g) When assisting or approving any action with air quality
related consequence, the Federal Highway Administration and SECTION .2000 - TRANSPORTATION CONFORMITY
the Federal Transit Administration of the Department of
.1601 PURPOSE, SCOPE AND APPLICABILITY
(a) The purpose of this Section is also to assure that a federal
action conforms with all plans required of areas designated as
nonattainment or maintenance under 40 CFR 8 1 .334 and listed
in Paragraph (b) or (c) of this Rule. No department, agency, or
instrumentality of the Federal Government shall engage in,
support in any way or provide financial assistance for, license or
permit, or approve any activity which does not conform to these
maintenance plans.
(b) This Section applies to the emissions of volatile organic
compounds and nitrogen oxides in the following areas;
(1) Davidson County,
(2) Durham County,
(3) Forsyth County,
(4) Gaston County,
(5) Guilford County,
(6) Mecklenburg County,
(7) Wake County,
(8) Dutchville Township in Granville County, and
(9) that part of Davie County bounded by the Yadkin
River. Dutchmans Creek. North Carolina Highway
801. Fulton Creek, and back to the Yadkin River.
(c) This Section applies to the emissions of carbon monoxide
in the following areas:
( 1 ) Durham County,
(2) Forsyth County,
(3) Mecklenburg County, and
(4) Wake County.
(d) This Section applies, in the areas identified in Paragraph
(b) or (c) of this Rule for the pollutants identified in Paragraph
(b) or (c) of this Rule, to federal actions not covered by Section
.2000 T+400 of this Subchapter.
Authority G.S. 143-2l5.3fa)(l): 143-215. I07(a)(I0).
Transportation shall give prioritv' to the implementation of those
transportation portions of an applicable implementation plan
prepared to attain and maintain the national ambient air quality
.2001 PURPOSE, SCOPE AND APPLICABILITY
(a) Tlie purpose of this Section is to assure the conformity of
transportation plans, programs, and projects that are developed.
standards. — This priority' shall be consistent with statutory funded, or approved by the United States Department of
requirements for allocation of funds among states or other
jurisdictions.
Authority G.S. 143-215. 3(a)(1): 143-215. 107(a)(10).
.1504 DETERMINING TRANSPORTATION-
RELATED EMISSIONS
(a) — The procedures in 40 CFR 51.452 shall be used to
determine regional transportation related emissions.
{kt) — The procedures in ^0 CFR 51.454 shall be used to
determine localized carbon monoxide concentrations (hot spot
analysis).
Authority: G.S. 143-21 5.3(a)(1): 143-215. 107(a)(10).
SECTION .1600 - GENERAL CONFORMITY
Transportation and by metropolitan planning organizations or
other recipients of funds under Title 23 U.S.C. or the Federal
Transit Act (49 U.S.C. 1601 et seq.). or State or Local only
sources of funds, with all plans required of areas designated as
nonattainment or maintenance under 40 CFR 8 1 .334 and listed
in Paragraph (b) or (c) of this Rule.
(b) This Section applies to the emissions of volatile organic
compounds and nitrogen oxides in the following areas:
(1) Davidson County,
(2) Durham County,
(3) Forsyth County,
(4) Gaston County,
(5) Guilford County,
(6) Mecklenburg County,
(Tj Wake County,
(8) Dutchville Township in Granville County, and
(9) that part of Davie County bounded by the Yadkin
^
mmMMfrnmiaB^^imMSk
A
PROPOSED RULES
River. Dutchmans Creek. North Carolina High\\a\
801. Fulton Creek, and back to the Yadi<in Ri\er
(c) This Section applies to the emissions of carbon monoxide
in the following areas:
(1) Durham County.
(2) Fors\th Countv
(3) Mecklenburg Counn. and
(4J WakeCounty,
(d) This Section applies, m the areas identified in Paragraph
(b) or (cj of this Rule for the pollutants identified [n Paragraph
(b) or <c) of this Rule, to:
( 1 ) the adoption, acceptance. appro\al. or support of
transportation plans and transportation plan
amendments developed pursuant to 23 CFR Part 450
or 49 CFR Part 613 by a metropolitan planning
organization or the United States Department of
Transportation;
(2) the adoption, acceptance. appro\al. or support of
transportation impro\ement programs or amendments
to transportation improvement programs pursuant to
23 CFR Part 450 or 49 CFR Part 613 bv a
metropolitan planning organization or the United
States Department of Transportation: or
(3) the approval, funding, or implementation of
FHWA FTA projects.
Conformit\ determinations are not required under this Section
for indi\idual projects that are not FHWA FTA projects.
Ho\\e\er. 40 CFR 93.121 shall appK to these projects if they are
regionalK significant projects.
Aulhorin- G.S. 143-215. 3(a)( 1): 143-215. WlaXlO).
.2002 DEFINITIONS
For the purposes ot~ thjs Section, the definitions contained [n
40 CFR 93.101 and the following definitions appK:
( 1 > "Consultation" means that one part\ confers \sith
another identified part\. pro\ides all information
necessary to that partA needed for meaningful input,
and considers and responds to the \ie\\s of that garty
in a timeh. substanti\e written manner prior to any
final decision.
(2) "RegionalK significant project" means a
transportation project (other than an e.xempt project
under 40 CFR 93.126) that is on a facility that serves
regional transportation needs (such as access to and
from the area outside of the region, major activity
centers m the region, major planned developments
such as ney\ retail malls and sports complexes, or
transportation terminals as vveil as most terminals
themsehes) and would normally be included m the
modeling of a metropolitan area's transportation
neUsork. including at a minimum all principal arterial
highways and all fixed guide way transit facilities that
offer an altemati\e to regional highyyay tray el.
(3) "Regionally significant State or local project" means
any highyvav or transit project that js a regionally
significant project and that is proposed to receiy e onl\
funding assistance ( receiy es no federal funding) or
approy al through the State or any local program.
Authority G.S. 143-2 15. 3(al(l): 143-21 5. W(al(10}.
.2003 TRANSPORTATION CONFORMITY
DETERMINATION
(a) Conformity anaK ses. determinations, and redeterminations
for transportation plans, transportation improvement programs.
FHWA FTA projects, and State or local regionally significant
projects shall be made according to the requirements of 40 CFR
93.104 and shall comply with the applicable requirements of 40
CFR 93.124 and 93.125. For the purposes of this Rule,
regionally significant State or local projects shall be subject to
the same requirements under 40 CFR Part 93 as FHWA^FTA
projects except that State Environmental Policy Act procedures
and requirements shall be substituted for National
Environmental Policy Act procedures and requirements.
Regionally significant State or local projects subject to this
Section for y\hich the State Environmental Policy Act process
and a con form in determination have been completed may
proceed toward implementation yvithout further conformity
determination unless more than three years have elapsed since
the most recent major step ( State Environmental Policy Act
process completion, start of final design, acquisition of a
significant portion of the right-of-yvav. or approval of the plans,
specifications, and estimates) occurred. All phases of these
projects considered jn the conformity determination are also
included if these phases y\ere for the purpose of funding final
design, right-of-yvav acquisition, construction, or any
combination of these phases.
(b) Before making a conformity determination, the
metropolitan planning organizations, local transportation
departments. North Carolina Department of Transportation.
United States Department of Transportation, the Diyision of Air
Qualin. local air pollution control agencies, and United States
Eny ironmental Protection Agency shall consult w ith each other
on matters described in 40 CFR 93.105(c). Consultation shall
begin as early as possible in tine deyelopment of tlie emissions
analysis used to support a conformity determination. The agency
that performs the emissions analysis shall make the analysis
available to the Division of AJr Quality and the general public
for comments: at least 21 days shall be allowed for revieyy and
comment on the emissions analysis. The agency that performs
the emissions analysis shall address all comments received and
these comments and responses thereto shall be included in the
final document. If the Div ision of Air Quality disagrees with the
resolution of its comments, the confiict may be escalated to the
Go\emor ysithin 14 days and shall be resolved in accordance
with 40 CFR 93.105(d). The 14-dav appeal period shall begin
yvhen the North Carolina Department of Transportation or the
metropolitan planning organization has confirmed receipt bv the
Director of the Diyision of Air Qualin of thie metropolitan
planning organization's resolution that determines conformity.
(c) The agency that performs the conformity analysis shall
notify the Division of Air Quality of:
( 1) any changes rn planning or analysis assumptions
[including land use and y chicle miles traveled ( VMT)
forecasts], and
^fi^^M^H
aust 3. 1998
J
M
PROPOSED RULES
(2) any revisions to transportation plans or transportation
improvement plans tiiat add, delete, or change projects
that require a new emissions analysis (including
design scope and dates).
Comments made by the Division of Air Quality and responses
thereto made by the agency shall become part of the final
planning docurrient.
(d) Transportation plans shall satisfV' the requirements of 40
CFR 93.106. Transportation plans and transportation
improvement programs shall satisfy the fiscal constraints
specified in 40 CFR 93.108. Transportation plans, programs.
and FHWA/FTA projects shall satisfy the applicable
requirements of 40 CFR 93.109 through 93.1 18.
(e) A recipient of federal funds designated under Title 23
U.S.C. or the Federal Transit Act shall not adopt or approve a
regionally significant highway or transit project, regardless of
funding source, unless there is a currently conforming
transportation plan and transportation improvement program
consistent with the requirements of 40 CFR 93.1 14 and the
project conforms with the applicable implementation plan
consistent with the requirements of 40 CFR 93. 121 .
(f) The degree of specificity required in a transportation plan
and the specific travel network assumed for air quality modeling
shall not preclude the consideration of alternatives in the
National Environmental Policy Act of 1969 process, jn
accordance with 40 CFR 93.107.
(g) When assisting or approving any action with air quality-
related consequence, the Federal Highway Administration and
the Federal Transit Administration of the Department of
Transportation shall give priorits to the implementation of those
transportation portions of an applicable implementation plan
prepared to attain and maintain the national ambient air quality
standards as provided under 40 CFR 93. 1 03. This priority shall
be consistent with statutory requirements for allocation of funds
among states or other jurisdictions.
Authority- G.S. 143-215.3ia)(ll: 143-215. lO^laXlO).
.2004 DETERMINING TRANSPORTATION-
RELATED EMISSIONS
(a) The procedures in 40 CFR 93.122 shall be used to
determine regional transportation-related emissions.
(M Ihe procedures in 40 CFR 93.123 shall be used to
determine localized carbon monoxide concentrations (hot-spot
analysis).
Authority^ G.S. 143-21 5.3(a)(1): 143-215. 107fa)(10).
.2005 MEMORANDUM OF AGREEMENT
The Division of Air Quality shall develop and maintain a
memorandum of agreement with the North Carolina Department
of Transportation, the metropolitan planning organizations of the
areas identified in Rule .2001(b) or (c) of this Section, and the
Federal Highway Administration to describe the participation
and responsibilities of each of these agencies in implementing
the requirements of this Section and 40 CFR Part 93. The
memorandum of agreement shall include:
(1) consultation procedures described under 40 CFR
93.105:
(2) the time allowed for each agency to review and
comment on or to respond to comments on
transportation improvement programs, transportation
plans, and transportation projects; and
(3) consultation procedures for the development of State
Implementation Plans that relate to transportation.
Authority G.S. 143-2 15.3(a)(1): 143-215. 107(a)(10).
SUBCHAPTER 2Q - AIR QUALITY PERMIT
PROCEDURES
SECTION .0100 - GENERAL PROVISIONS
.0102 ACTIVITIES EXEMPTED FROM PERMIT
REQUIREMENTS
(a) If a source is subject to any of the following rules, then the
source is not exempted from permit requirements, and the
exemptions in Paragraph (b) of this Rule do not apply:
( 1 ) new source performance standards under 1 5 A NCAC
2D .0524 or 40 CFR Part 60, except:
(A) 40 CFR Part 60, Subpart Dc, industrial,
commercial, and institutional steam generating
units located at a facility not required to be
permitted under Section .0500 of this
Subchapter;
(B) 40 CFR Part 60. Subpart Kb. volatile organic
liquid storage vessels located at a facility not
required to be permitted under Section .0500 of
this Subchapter; er
(C) 40 CFR Part 60, Subpart AAA, new residential
wood heaters; or
(D) 40 CFR Part 60. Subpart WWW, municipal
solid waste landfills not required to be
permitted under Section .0500 of this
Subchapter;
(2) national emission standards for hazardous air
pollutants under 1 5A NCAC 2D . 1 1 10 or 40 CFR Part
61. except asbestos demolition and renovation
activities;
(3) prevention of significant deterioration under 15A
NCAC 2D .0530;
(4) new source review under 15A NCAC 2D .0531 or
.0532;
(5) sources of volatile organic compounds subject to the
requirements of 1 5A NCAC 2D .0900 that are located
in Mecklenburg County in accordance with 15A
NCAC 2D .0902;
(6) sources required to apply maximum achievable
control technology (MACT) for hazardous air
pollutants under 1 5A NCAC 2D . 1 1 09 or . 1 1 1 1 or 40
CFR Part 63 that are required to have a permit under
Section .0500 of this Subchapter; or
(7) sources at facilities subject to 1 5 A NCAC 2D . 1 1 00.
(If a source does not emit a toxic air pollutant for
which the facility at which it is located has been
evaluated, it shall be exempted from needing a permit
mBm^MUMMaaS^m^imMik
a
PROPOSED RULES
if it qualifies for one of the exemptions in Paragraph
(b) of this Rule).
(b) The following activities do not need a permit or permit
modification under this Subchapter; ho\ve\er. the Director ma\
require the owner or operator of these activities to register them
under 15A NCAC 2D .0200:
(1) activities exempted because of categor) (These
activities shall not be included on the permit
application or in the permit.):
(A) maintenance, upkeep, and replacement:
(i) maintenance, structural changes, or
repairs which do not change the capacity-
of such process. fuel-burning,
refuse-burning, or control equipment,
and do not involve an\ change in qualit)
or nature or increase in quantity of
emission of regulated air pollutants;
(ii) housekeeping activities or building
maintenance procedures, including
painting buildings, resurfacing floors,
roof repair, washing, portable vacuum
cleaners, sweeping, use and associated
storage of janitorial products, or
insulation removal;
(iii) use of office supplies, supplies to
maintain copying equipment, or
blueprint machines;
(iv) use of fire fighting equipment;
(v) paving parking lots; or
(vi) replacement of existing equipment w ith
equipment of the same size, type, and
function that does not result in an
increase to the actual or potential
emission of regulated air pollutants and
that does not affect the compliance
status, and \s ith replacement equipment
that fits the description of the existing
equipment in the permit, including the
application, such that the replacement
equipment can be operated under that
permit without any changes in the
permit;
(B) air conditioning or ventilation: comfort air
conditioning or comfort ventilating systems
which do not transport, remove, or exhaust
regulated air pollutants to the atmosphere;
(C) laboratory activities:
(i) bench-scale, on-site equipment used
exclusively for chemical or physical
analysis for quality control purposes,
staff instruction, water or wastewater
analyses. or non-production
environmental compliance assessments;
(ii) bench-scale experimentation, chemical
or physical analyses, training or
instruction from not-for-profit, non-
production educational laboratories;
(iii) bench-scale experimentation, chemical
or physical analyses, training or
instruction from hospitals or health
laboratories pursuant to the
determination or diagnoses of illness; or
(iv) research and development laboratory
activities that are not required to be
permitted under Section .0500 of this
Subchapter provided the activity
produces no commercial product or
feedstock material;
(D) storage tanks:
(i) storage tanks used solely to store fuel
oils, kerosene, diesel, crude oil, used
motor oil. lubricants, cooling oils,
natural gas or liquified liquefied
petroleum gas;
(ii) storage tanks used to store gasoline for
which there are no applicable
requirements except Stage 1 controls
under 15A NCAC 20 .0928;
(iii) storage tanks used solely to store
inorganic liquids; or
(iv) storage tanks or vessels used for the
temporary containment of materials
resulting from an emergency response to
an unanticipated release of hazardous
materials;
(E) combustion and heat transfer equipment:
(i) space heaters burning distillate oil.
kerosene, natural gas. or liquified
liquefied petroleum gas operating by
direct heat transfer and used solely for
comfort heat;
(ii) residential wood stoves, heaters, or
fireplaces;
(iii) hot water heaters which are used for
domestic purposes only and are not used
to heat process water;
(F) wastewater treatment processes: industrial
wastewater treatment processes or municipal
wastewater treatment processes for which there
are no applicable requirements;
(G) gasoline distribution:
(i) gasoline service stations or gasoline
dispensing facilities that are not required
to be permitted under Section .0500 of
this Subchapter; or
(ii) gasoline dispensing equipment at
facilities required to be permitted under
Section .0500 of this Subchapter if the
equipment is used solely to refuel
facility equipment;
(H) dispensing equipment: equipment used solely
to dispense diesel fuel, kerosene, lubricants or
cooling oils;
(I) solvent recycling: portable solvent distillation
systems used for on-site solvent recycling if:
(i) The portable solvent distillation system
A
^i^^^^H
^
m
PROPOSED RULES
is not:
(J)
(K)
m
(ii)
(I) owned by the facility, and
(II) operated at the facility for more
than seven consecutive days; and
The material recycled is:
(I)
(H)
(III)
processes:
(i)
recycled at the site of origin,
the original material is non-
photochemically reactive in
accordance with 15A NCAC 2D
.0518, Miscellaneous Volatile
Organic Compound Emissions,
and
all make up material is non-
photochemically reactive in
accordance with 15A NCAC 2D
.0518;
(ii)
(iii)
(iv)
(V)
small electric motor bum-out ovens with
secondary combustion chambers or
afterburners;
small electric motor bake-on ovens;
bum-off ovens for paint-line hangers
with afterbumers;
hosiery knitting machines and
associated lint screens, hosiery dryers
and associated lint screens, and hosiery
dyeing processes where bleach or
solvent dyes are not used;
blade wood planers planing only green
wood;
solid waste landfills: municipal solid waste
landfills not required to be permitted under
Section .0500 of this Subchapter (This Part
does not apply to flares and other sources of
combustion at solid waste landfills.);
(Lj miscellaneous;
(i) motor vehicles, aircraft, marine vessels,
locomotives, tractors or other
self-propelled vehicles with internal
combustion engines;
(ii) non-self-propelled non-road engines,
except generators, regulated by mles
adopted under Title 11 of the federal
Clean Air Act;
(iii) equipment used for the preparation of
food for direct on-site human
consumption;
(iv) a source whose emissions are regulated
only under Section 1 12(r) or Title VI of
the federal Clean Air Act that is not
required to be permitted under Section
.0500 of this Subchapter;
(v) exit gases from in-line process
analyzers;
(vi) stacks or vents to prevent escape of
sewer gases from domestic waste
through plumbing traps;
(vii) refrigeration equipment that is
consistent with Section 601 through 618
of Title VI (Stratospheric Ozone
Protection) of the federal Clean Air Act,
40 CFR Part 82, and any other
regulations promulgated by EPA under
Title VI for stratospheric ozone
protection, except those units used as or
in conjunction with air pollution control
equipment;
(viii) equipment not vented to the outdoor
atmosphere with the exception of
equipment that emits volatile organic
compounds;
(ix) equipment that does not emit any
regulated air pollutants;
(x) facilities subject only to a requirement
under 40 CFR Part 63 that are not
required to be permitted under Section
.0500 of this Subchapter (This Subpart
does not apply when a control device is
used to meet a MACT or GACT
emission standard.); ef
(xi) sources for which there are no
applicable requirements and that are at a
facility not required to be permitted
under Section .0500 of this Subchapter.
Subchapter; or
(xii) sources for which there are no
applicable requirements and that are at a
facility required to be permitted under
Section .0500 of thjs Subchapter
following the procedures in Paragraph
(c) of this Rule;
(2) activities exempted because of size or production rate
(These activities shall not be included in the permit.
If the facility is subject to the permitting procedures
under Section .0500 of this Subchapter, these
activities shall be listed on the permit application;
otherwise, these activities shall not be listed on the
permit application.);
(A) storage tanks:
(i) above-ground storage tanks with a
storage capacity of no more than 1 100
gallons storing organic liquids with a
tme vapor pressure of no more than 10.8
pounds per square inch absolute at
70°F;or
(ii) underground storage tanks with a
storage capacity of no more than 2500
gallons storing organic liquids with a
true vapor pressure of no more than 10.8
psi absolute at 70 °F;
(B) combustion and heat transfer equipment
located at a facility not required to be permitted
under Section .0500 of this Subchapter:
(i) fuel combustion equipment, except for
intemal combustion engines, firing
exclusively kerosene. No. 1 fuel oil. No.
Mm^mm^U^^m^m
m
PROPOSED RULES
2 fuel oil. equivalent unadulterated
fuels, or a mixture of these fuels or one
or more of these fuels mixed of with
natural gas or liquified liquefied
petroleum gas w ith a heat input of less
than:
(1) 10 million BTU per hour for
which construction, modification.
or reconstructed commenced
after June 9. 1989: or
(II) 30 million BTU per hour for
which construction, modification.
or reconstruction commenced
before June 10. 1989;
(ii) fuel combustion equipment, except for
internal combustion engines, firing
exclusively natural gas or liquified
liquefied petroleum gas or a mixture of
these fuels with a heat input rating less
than 65 million BTU per hour:
(iii) space heaters burning waste oil if
(I ) The heater bums only oil that the
owner or operator generates or
used oil from do-it-\ourself oil
changers who generate used oil
as household wastes:
(II) The heater is designed to have a
maximum capacity of not more
than 500.000 Btu per hour: and
(III) The combustion gases from the
heater are vented to the ambient
air:
(iv) emergencv use generators and other
internal combustion engines not
regulated b\ rules adopted under Title II
of the federal Clean Air Act. except
self-propelled vehicles, that have a rated
capacit) of no more than:
(I) 310 kilov\ans (electric) or 460
horsepower for natural gas-fired
engines.
(II) 830 kilowatts (electric) or 1150
horsepov\er for liquified
liquefied petroleum gas-fired
engines.
(III) 270 kilowatts (electric) or 410
horsepower for diesel-fired or
kerosene-fired engines, or
(IV) 21 kilowatts (electric) or 31
horsepower for gasoline-fired
engines:
(v) portable generators and other portable
equipment vsith internal combustion
engines not regulated by rules adopted
under Title II of the federal Clean Air
Act. except self-propelled vehicles, that
operate at the facility no more than a
combined 350 hours for an\ 365-dav
period provided the generators or
engines have a rated capacity of no more
than 750 kilowatt (electric) or 1100
horsepov\er each and provided records
are maintained to verify the hours of
operation:
(vi) peak shaving generators that produce no
more than 325,000 kilowatt-hours of
electrical energy for any 12-month
period provided records are maintained
to verify the energy production on a
monthly basis and on a 12-month basis:
(C) gasoline distribution: bulk gasoline plants v\ith
an average dailv throughput of less than 4000
gallons that is not required to be permitted
under Section .0500 of this Subchapter:
(D) processes:
(i) printing, paint sprav booths or other
painting or coating operations without
air pollution control devices (water
wash and filters that are an integral part
of the paint sprav booth are not
considered air pollution control devices)
located at a facilitv whose facility-wide
actual emissions of:
(I) Volatile organic compounds are
less than five tons per year, and
(11) Photochemically reactive solvent
emissions under 1 5A NCAC 2D
.05 1 8 are less than 30 pounds per
dav:
prov ided the facility is not required to
be permitted under Section .0500 of this
Subchapter:
(ii) saw mills sawmills that saw no more
than 2.000.000 board feet per vear
provided only green v\ ood is sawed;
(iii) perchloroethvlene dn. cleaners that
consume emits less than 13.000 pounds
(965 gallons) of perchloroethylene per
year:
(iv) electrostatic dr\ powder coating
operations with filters or powder
recovery systems including electrostatic
dry povsder coating operations equipped
vs ith powder recoverv including curing
ovens with a heat input of less than
10.000.000 BTU per hour:
(E) miscellaneous:
(i) anv source vsithout an air pollution
control device whose potential
emissions of particulate, sulfur dioxide,
nitrogen oxides, volatile organic
compounds, and carbon monoxide
before air pollution control devices, i.e..
potential uncontrolled emissions, are
each no more than five tons per v ear and
whose potential emissions of hazardous
707
^O'^rHCMO.U^AH.aiSTBH
MMMSk
m
PROPOSED RULES
air pollutants are below their lessor quantity cutoff except:
(1) storage tanks,
(II) fijel combustion equipment,
excluding fuel combustion
equipment at facilities required to
have a permit under Section
.0500 of this Subchapter, firing
exclusively kerosene. No. 1 fuel
oil. No. 2 fuel oil. equivalent
unadulterated fuels, natural gas,
liquified liquefied petroleum gas,
or a mixture of these fuels.
(III) space heaters burning waste oil,
(IV) generators, excluding emergency
generators, or other non-self-
propelled internal combustion
engines,
(V) bulk gasoline plants.
(VI) printing, paint spray booths, or
other painting or coating
operations.
(VII) sawmills,
(VIII) perchloroethylene dry cleaners,
or
(IX) electrostatic dry powder coating
operations,
provided that the total potential
emissions of particulate, sulfur dioxide,
nitrogen oxides, volatile organic
compounds, and carbon monoxide from
the facility are each less than 40 tons per
year and the total potential emissions of
all hazardous air pollutants are below
their lesser quantity cutoff emission
rates or provided that the facility has an
air quality permit:
(ii) any facility without an air pollution
control device whose actual emissions
of particulate, sulfur dioxide, nitrogen
oxides, volatile organic compounds, or
carbon monoxide before air pollution
control devices, i.e.. uncontrolled
emissions, are each less than five tons
per year, whose potential emissions of
all hazardous air pollutants are below
their lesser quantity cutoff emission
rates, and which is not required to have
a permit under Section .0500 of this
Subchapter;
(iii) any source that only emits hazardous air
pollutants that are not also a particulate
or a volatile organic compound and
whose potential emissions of hazardous
air pollutants are below their lesser
quantity cutoff emission rates; or
(iv) any incinerator covered under Paragraph
(d)of 15ANCAC2D.1201.
(F) case-by-case exemption:
(i) for activities located at facilities not
required to have a permit under Section
.0500 of this Subchapter, activities that
the applicant demonstrates to the
satisfaction of the Director:
(I) to be negligible in their air
quality impacts.
(II) not to have any air pollution
control device, and
(III) not to violate any applicable
emission control standard when
operating at maximum design
capacity or maximum operating
rate, whichever is greater; or
(ii) for activities located at facilities
required to have a permit under Section
.0500 of this Subchapter: activities that
the applicant demonstrates to the
satisfaction of the Director:
(1) to be negligible in their air
quality impacts.
(11) not to have any air pollution
control device,
(III) not to violate any applicable
emission control standard when
operating at maximum design
capacity or maximum operating
rate, whichever is greater,
(IV) the potential emissions of each
criteria pollutant is less than five
tons per year, and
(V) the potential emissions of each
hazardous air pollutant is less
than 1 000 pounds per year.
(c) The Director may exempt a source for which there are no
applicable requirements at a facility required to have a permit
under Section .0500 of this Subchapter from needing a permit if:
( 1 ) The Director finds that emissions from the source are
not likeK to cause or contribute to any violation of an
ambient air quality standard under 15A NCAC 2D
.0400. or 40 CFR Part 50; and
(2) The proposed permit exemption is noticed along with
the initial draft permit or the next draft permit revision
requiring public notice or draft permit renewal,
whichever occurs first, and js subject to public
comment procedures in Section .0500 of this
Subchapter.
If during the comment period EPA or any other person provides
a satisfactory explanation to the Director of why the source
should be permitted, the Director shall include the source in the
facility's permit; otherwise, the Director shall not include the
source in the facility's pennit.
fe) (dj Because an activity is exempted from being required
to have a permit does not mean that the activity is exempted from
any applicable requirement or that the owner or operator of the
source is exempted from demonstrating compliance with any
applicable requirement.
(4) (ej Emissions from stationary source activities identified
msammmMasa^^m^^
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PROPOSED RULES
in Paragraph (b) of this Rule shall be included in determining
compliance with the toxic air pollutant requirements under 1 5A
NCAC 2D .1100 or 2Q tOTOO. .0700 according to \5A NCAC
2Q .0702 (exemptions from air to.\ic permitting).
fe) [f) The owner or operator of a facilit\ or source claiming
an exemption under Paragraph (b) of this Rule shall pro\'ide the
Director documentation upon request that the facility or source
is qualified for that exemption.
Author in- G.S.
143-2 15.! 08.
143-215. 3(a)(1):
143-215. 10'(a)(4):
.0103 DEFINITIONS
For the purposes of this Subchapter, the definitions in G.S.
143-212 and 143-213 and the following definitions appK:
(1)
(2)
(3)
(4)
"Air Pollutant" means an air pollution agent or
combination of such agents, including an\ ph\sical.
chemical, biological, radioactive substance or matter
which is emitted into or otherwise enters the ambient
air. Water \apor is not considered to be an air
pollutant.
"Allowable emissions" mean the maximum emissions
allowed b) the applicable rules contained in 15A
NCAC 2D or b\ permit conditions if the permit limits
emissions to a lesser amount.
"Alter or change" means to make a modification.
"Applicable requirements" means:
(a) an\ requirement of Section .0500 of this
Subchapter:
(b) an\ standard or other requirement pro\ ided for
in the implementation plan approved or
promulgated b\ EPA through rulemaking under
Title I of the federal Clean Air Act that
implements the rele\ant requirements of the
federal Clean Air Act including an\ re\isions
to 40 CFR Part 52;
(c) an_\ term or condition of a construction permit
for a facility. co\ered under ISA NCAC 2D
.0530. .0531. or .0532:
(d) an\ standard or other requirement under
Section 111 or 112 of the federal Clean Air
Act. but not including the contents of an\ risk
management plan required under Section 1 12
of the federal Clean Air Act;
(e) an\ standard or other requirement under Title
iv-
(0 an\ standard or other requirement governing
solid waste incineration under Section 129 of
the federal Clean Air Act;
(g) an\ standard or other requirement under
Section 183(e). 183(f). or 328 of the federal
Clean Air Act;
(h) an> standard or requirement under Title VI of
the federal Clean Air Act unless a permit for
such requirement is not required under this
Section;
(i) an\ requirement under Section 504(b) or
1 14(a)(3) of the federal Clean Air .Act: or
(j) an\ national ambient air quality' standard or
increment or visibility requirement under Part
C of Title 1 of the federal Clean Air Act. but
onl\ as it would appK' to temporary sources
permitted pursuant to 504(e) of the federal
Clean Air Act.
(5) "Applicant" means the person who is applying for an
air quality permit from the Division.
(6) "Application package" means all elements or
documents needed to make an application complete.
(7) "CFR" means Code of Federal Regulations.
(8) "Construction" means change in the method of
operation or any physical change (including on-site
fabrication, erection, installation, replacement,
demolition, or modification of a source) that results in
a change in emissions or affects the compliance status.
(9) "Director" means the Director of the Division of
Environmental Management.
(10) "Division" means the Division of Environmental
Management.
(11) "EPA" means the United States Environmental
Protection Agency or the Administrator of the
En\ironmental Protection Agency.
(12) "EPA approves" means full approval, interim
approval, or partial approval by EPA.
(13) "Equi\'alent unadulterated fliels" means used oils that
have been refined such that the content of toxic
additives or contaminants in the oil are no greater than
those in unadulterated fossil fuels.
(14) "Facility" means all of the pollutant emitting
activities, except transportation facilities as defined
under Rule .0802 of this Subchapter, that are located
on one or more adjacent properties under common
control.
(15) "FederalK enforceable" or "federal-enforceable"
means enforceable b\ EPA.
(16) "Fuel combustion equipment" means any fuel burning
source covered under ISA NCAC 2D .0503. .0504.
.0524(aK 1 ). (29). (56). or (65). or .0536,
(17) "Green wood" means wood \\ ith a moisture content of
18 percent or more.
(18) "Hazardous air pollutant" means an\ pollutant which
has been listed pursuant to Section 112(b) of the
federal Clean Air Act. Pollutants which are listed only
in ISA NCAC 2D .1104 (Toxic Air Pollutant
Guidelines), but not pursuant to Section 112(b). are
not included in this definition.
( 1 9) "Insignificant activities" means an\ activity exempted
under Rule .0102 of this Section.
(20) "Irrevocable contract" means a contract that cannot be
revoked without substantial penalty.
(21) "Lesser quantity cutoff means:
(a) for a source subject to the requirements of
Section 1 12(d) or (j) of the federal Clean Air
Act. the level of emissions of hazardous air
pollutants below which the following are not
required:
(i) maximum achievable control technology
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(MACT) or generally available control
technology (GACT), including work
practice standards, requirement under
Section 1 12(d) of the federal Clean Air
Act;
(ii) substitute MACT or GACT adopted
under Section 112(1) of the federal
Clean Air Act; or
(iii) a MACT standard established under
Section 112(j) of the federal Clean Air
Act;
(b) for modification of a source subject to, or may
be subject to, the requirements of Section
11 2(g) of the federal Clean Air Act, the level
of emissions of hazardous air pollutants below
which MACT is not required to be applied
under Section 1 1 2(g) of the federal Clean Air
Act; or
(c) for all other sources, potential emissions of
each hazardous air pollutant below 1 0 tons per
year and the aggregate potential emissions of
all hazardous air pollutants below 25 tons per
year.
(22) "Major facility" means a major source as defined
under40CFR70.2.
(23) "Modification" means any physical change or change
in method of operation that results in a change in
emissions or affects compliance status of the source or
facility.
(24) "Owner or operator" means any person who owns,
leases, operates, controls, or supervises a facility,
source, or air pollution control equipment.
(25) "Peak shaving generator" means a generator that is
located at a facility and is used only to serve that
facility's on-site electrical load during peak demand
periods for the purpose of reducing the cost of
electricity; it does not generate electricity for resale.
A peak shaving generator may also be used for
emergency backup.
(26) "Permit" means the legally binding written document,
including any revisions thereto, issued pursuant to
G.S. 143-215.108 to the owner or operator of a
facility or source that emits one or more air pollutants
and that allows that facility or source to operate in
compliance with G.S. 143-215.108. This document
specifies the requirements applicable to the facility or
source and to the permittee.
(27) "Permittee" means the person who has received an air
quality permit from the Division.
(28) "Potential emissions" means the rate of emissions of
any air pollutant which would occur at the facility's
maximum capacity to emit any air pollutant under its
physical and operational design. Any physical or
operational limitation on the capacity of a facility to
emit an air pollutant shall be treated as a part of its
design if the limitation is federally enforceable. Such
physical or operational limitations include air
pollution control equipment and restrictions on hours
of operation or on the type or amount of material
combusted, stored, or processed. Potential emissions
include fugitive emissions as specified in the
definition of major source in 40 CFR 70.2. Potential
emissions do not include a facility's secondary
emissions such as those from motor vehicles
associated with the facility and do not include
emissions fi^om insignificant activities listed in Rule
.0102(b)(1) of this Section. If a rule in 40 CFR Part
63 uses a different methodology to calculate potential
emissions, that methodology shall be used for sources
and pollutants covered under that rule.
(29) "Portable generator" means a generator permanently
mounted on a trailer or a frame with wheels.
(30) "Regulated air pollutant" means:
(a) nitrogen oxides or any volatile organic
compound as defined under 40 CFR 5 1 . 1 00;
(b) any pollutant for which there is an ambient air
quality standard under 40 CFR Part 50 ;
(c) any pollutant regulated under 15A NCAC 2D
.0524, . 1 1 1 0, or . 1 1 1 1 or 40 CFR Part 60, 61 ,
or 63;
(d) any pollutant subject to a standard promulgated
under Section 112 of the federal Clean Air Act
or other requirements established under Section
112 of the federal Clean Air Act, including
Section 1 12(g) (but only for the facility subject
to Section 1 12(g)(2) of the federal Clean Air
Act), (j), or (r) of the federal Clean Air Act; or
(e) any Class 1 or II substance listed under Section
602 of the federal Clean Air Act.
(31) "Sawmill" means a place or operation where logs are
sawed into lumber consisting of one or more of these
activities: debarking, sawing, and sawdust handling.
Activities that are not considered part of a sawmill
include chipping, sanding, planing, routing, lathing,
and drilling.
f34^ (32) "Source" means any stationary article, machine,
process equipment, or other contrivance, or
combination thereof, from which air pollutants
emanate or are emitted, either directly or indirectly.
(35) (33) "Toxic air pollutant" means any of the
carcinogens, chronic toxicants, acute systemic
toxicants, or acute irritants that are listed in 15A
NCAC 2D. 11 04.
(^3) (34) "Transportation facility" means a complex
source as defined at G.S. 143-2 1 3(22) that is subject
to the requirements of 15A NCAC 2D .0800.
f34) (35) "Unadulterated fossil fuel" means fuel oils, coal,
natural gas, or liquefied petroleum gas to which no
toxic additives have been added that could result in
the emissions of a toxic air pollutant listed under 1 5 A
NCAC 2D. 11 04.
Aulhorih' G.S. N3-2I5. 3(a)(1): 143-212: 143-213.
.0107 CONFIDENTIAL INFORMATION
(a) All information required to be submitted to the
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PROPOSED RILES
Commission or the Director under this Subchapter or Subchapter
2D of this Title shall be disclosed to the public unless the person
submitting the information can demonstrate that the information
is entitled to contldential treatment under G.S. 143-2 1 5. 3C.
(b) A request that information he treated as confidential shall
be made b> the person submitting the information at the time that
the information is submitted. The request shall state in writing
reasons \sh\ the information should be held confidential. An_\
request not meeting these requirements shall be in\alid.
(c) The Director shall make a preliminar> determination of
decide which information is entitled to confidential treatment
and shall notif\ the person requesting confidential treatment of
his decision within W 180 da>s of receipt of a request to treat
information as confidential.
(d) Information for which a request has been made under
Paragraph (b) of this Rule to treat as confidential shall be treated
as confidential until the Director decides that it is not
contTdential.
Authority G.S. 143-21 5. 3la)(l i: 143-21 5. 3C.
SECTION .0300 - CONSTRUCTION AND OPERATION
PERMITS
.0304 APPLICATIONS
(a) Obtaining and filing application. Permit, permit
modification, or permit renewal applications ma\ be obtained
and shall be filed in writing in accordance with according to
Rule .0104 of this Subchapter.
(b) Information to accompans application. Along with filing
a complete application form, the applicant shall also file the
following:
(1) for a new facilit} or an expansion of existing facilin..
a consistencN determination in accordance with
according to G.S. 143-215. 108(f) that:
(A) bears the date of receipt entered b\ the clerk of
the local go\ emment. or
(B) consists of a letter from the local go\ emment
indicating that all zoning or subdi%ision
ordinances are met b\ the facilit> ;
(2) for a new facilit> or moditlcation of an existing
facilit\. a written description of current and projected
plans to reduce the emissions of air contaminants b\
source reduction and rec\cling in accordance with
according to G.S. 143-215. 108(g): the description
shall include:
(A) for an existing facilit\. a summan. of acti\ities
related to source reduction and rec\cling and a
quantification of air emissions reduced and
material recNcled during the previous % ear and
a summary of plans for further source
reduction and rec\ cling: or
(B) for a new facilit>. a summan. of acti\ities
related to and plans for source reduction and
recNcling: and
(3) if required b> the Director, information showing that:
(A) The applicant is financialK qualified to carr\
out the permitted acti\ ities. or
(Bj The applicant has substantialK complied with
the air quality and emissions standards
applicable to an\ acti\it} in which the
applicant has pre\iousK been engaged, and has
been in substantial compliance with federal and
state en\ ironmental laws and rules.
(c) When to fije application. For sources subject to the
requirements of 15A NCAC 2D .0530 (prevention of significant
deterioration) or .0531 (new source re\iew for sources in
nonattainment areas), applicants shall file air permit applications
at least 180 da%'s before the projected construction date. For all
other sources, applicants shall file air permit applications at least
90 da\s before the projected date of construction of a new
source or modification of an existing source.
(d) Permit renewal and ownership changes with no
modifications. If no modification has been made to the
originalK permitted source, application for permit renewal or
ownership change ma> be made b\ letter to the Director at the
address specified in Rule .0104 of this Subchapter The renewal
or ownership change letter must state that there have been no
changes in the permitted facilitv since the permit was last issued.
Howe\er. the Director ma\ require the applicant for ownership
change to submit additional information show ing that:
( 1 ) The applicant is financialK qualified to carr> out the
permitted activities, or
(2) The applicant has substantialK complied with the air
qualitv and emissions standards applicable to an\
activity' in which the applicant has previousl> been
engaged, and has been in substantial compliance w ith
federal and state en\ ironmental law s and rules.
To make a name or ownership change, the applicant shall send
the Director the number of copies of letters specified in Rule
.0305(3) or (4) of this Section signed b\ a person specified in
Paragraph (j) of this Rule.
(e) .Applications for date and reporting changes. Application
for changes in construction or test dates or reporting procedures
ma\ be made b\ letter to the Director at the address specified in
Rule .0104 of this Section. To make changes in construction or
test dates or reporting procedures, the applicant shall send the
Director the number of copies of letters specified in Rule
.0305(a)(5) of this Section signed b\ a person specified in
Paragraph (J) of this Rule.
(f) When to file applications for permit renewal. Applicants
shall file applications for renewals such that the\ are received b>
the Division at least 90 da>s before expiration of the permit.
(g) Ownership or name change. The permittee shall tile
requests for permit name or ownership changes as soon as the
permittee is aware of the imminent name or ownership change.
(h) Number of copies of additional information. The
applicant shall submit the same number of copies of additional
information as required for the application package.
(i) Requesting additional information. Whenever the
information provided on the permit application forms does not
adequate!} describe the source and its air cleaning dev ice. the
Director mav request that the applicant provide anv other
information that the Director considers necessar}. to ev aluate the
source and its air cleaning dev ice. Before acting on anv permit
application, the Director mav request anv information from an
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applicant and conduct any inquiry or investigation that he
considers necessary to determine compliance with applicable
standards.
(j) Signature on application. Permit applications submitted
pursuant to this Rule shall be signed as follows:
( 1 ) for corporations, by a principal executive officer of at
least the level of vice-president, or his duly authorized
representative, if such representative is responsible for
the overall operation of the facility from which the
emissions described in the permit application form
originates;
(2) for partnership or limited partnership, by a general
partner;
(3) for a sole proprietorship, by the proprietor;
(4) for municipal, state, federal, or other public entity, by
a principal executive officer, ranking elected official,
or other duly authorized employee.
(k) Application fee. With the exceptions specified in Rule
.0203(1) of this Subchapter, a non-reftindable permit application
processing fee shall accompany each application. The permit
application processing fees are defined in Section .0200 of this
Subchapter. Each A permit application is incomplete until the
permit application processing fee is received.
tlj Correcting submittals of incorrect information. An
applicant has a continuing obligation to submit relevant facts
pertaining to his permit application and to correct incorrect
information on his permit application.
fl) (m) Retaining copy of permit application package. The
applicant shall retain for the duration of the permit term one
complete copy of the application package and any information
submitted in support of the application package.
Authority G.S. 143-21 5. 3(a)(l ): 145-215.108.
.0306 PERMITS REQUIRING PUBLIC
PARTICIPATION
(a) The Director shall provide for public notice for comments
with an opportunity to request a public hearing on draft permits
for the following:
(1) any source that may be designated by the Director
based on significant public interest relevant to air
quality;
(2) a source to which 15A NCAC 2D .0530 or .0531
applies;
(3) a source whose emission limitation is based on a good
engineering practice stack height that exceeds the
height defined in 15A NCAC 2D .0533(a)(4)(A). (B).
or(C);
(4) a source required to have controls more stringent than
the applicable emission standards in 15A NCAC 2D
.0500 in accordance with according to 1 5 A NCAC 2D
.0501 when necessary to comply with an ambient air
quality standard under 15A NCAC 2D .0400;
necesoary to avoid the applicability of rules in 15A
NCAC 2D .0900 or 15A NCAC 2Q .0500;
(^ (5_) alternative controls different than from the
applicable emission standards in 15A NCAC 2D
.0900 in accordance with according to 1 5A NCAC 2D
.0952;
(7^ an alternate compliance schedule promulgated in
accordance with 15A NCAC 2D .0910;
(^ (6} a limitation on the quantity of solvent-borne ink
that may be used by a printing unit or printing system
in accordance with according to 15A NCAC 2D
.0936;
(9) £7J anallowanceof a particulate emission rate of 0.08
grains per dry standard cubic foot for an incinerator
constructed before July 1, 1987, in accordance with
according to 15A NCAC 2D .1205(b)(2);
(4-0) (8} an alternative mix of controls under 1 5 A NCAC
2D .0501(f):
(44-) (9j a source that is subject to the requirements of 1 5 A
NCAC 2D . 1 1 09 because of 1 5 A NCAC 2D . 1 1 09(e);
or
f+2) (10) the owner or operator who requests that the draft
permit go to public notice with an opportunity to
request a public hearing.
(b) Failure of the owner or operator of a source permitted
pursuant to this Rule to adhere to the terms and limitations of the
permit shall be grounds for:
fH — enforcement action;
Q) — permit termination, revocation and reissuance, or
modification; or
{¥) — denial of permit renewal applications.
(c) All emissions limitations, controls, and other requirements
imposed by a permit issued pursuant to this Rule shall be at least
as stringent as any other applicable requirement as defined under
Rule .0103 (effective date of July 1. 1994) of this Subchapter.
The permit shall not waive or make less stringent any limitation
or requirement contained in any applicable requirement.
fd) Emissions — limitations. — controls — and — requirements
contained in permits issued pursuant to the Rule shall be
permanent, quantifiable, and otherwise enforceable as a practical
matter under G.S. — H3 215. IHA. — 143215. 114B. and
1'13 215.1WJC.
(e) (bj If EPA requires the State to submit a permit as part of
the North Carolina State Implementation Plan for Air Quality
(SIP) and if the Commission approves a permit containing any
of the conditions described in Paragraph (a) of this Rule as a part
of the SIP. the Director shall submit the permit to the EPA on
behalf of the Commission for inclusion as part of the federally
approved SIP.
Authority G.S. 143-215. 3(a)ll).(3>:
143-2 15. 11 4A: 143-215.114B: 143-215.114C.
143-215.108:
<^53 any physical or operational limitation on the capacity .0309
of the source to emit a pollutant, including air
cleaning device and restrictions on hours of operation
or on the type or amount of material combusted,
stored, or processed, when such a limitation is
TERMINATION, MODIFICATION AND
REVOCATION OF PERMITS
(a) The Director may terminate, modify, or revoke and reissue
any permit issued under this Section if:
(1) The information contained in the application or
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PROPOSED RULES
presented in support thereof is determined to be
incorrect:
(2) The conditions under which the permit or permit
renewal was granted ha\e changed;
(3) Violations of conditions contained in the permit ha\e
occurred:
(4) The permit holder fails to pa\ the fee required under
Section .0200 of this Subchapter within 30 da\s after
being billed:
(5) The permittee refuses to allow the Director or his
authorized representative upon presentation of
credentials:
(A) to enter, at reasonable times and using
reasonable safet\ practices, the permittee's
premises in which a source of emissions is
located or in which an\ records are required to
be kept under terms and conditions of the
permit:
(B) to ha\e access, at reasonable times, to an\ cop>
or records required to be kept under terms and
conditions of the permit:
(C) to inspect, at reasonable times and using
reasonable safer\ practices. an\ source of
emissions, control equipment, and an\
monitoring equipment or method required in
the permit: or
(D) to sample, at reasonable times and using
reasonable safet> practices. an\ emission
source at the facilitN :
(6) The Director finds that termination, modification, or
revocation and reissuance of a permit is necessan. to
earn, out the purpose of G.S. 143. Article 21B.
(b) The permittee shall furnish the Division, in a timelv
manner, any reasonable information that the Director mav
request in v\riting to determine whether cause exists for
terminating, modify ing. or revoking and reissuing the permit or
to determine compliance w ith the permit.
fb4 IcJ The operation of a facilitv or source after its permit
has been revoked terminated is a violation of this Section and
G.S. 143-215.108.
te4 [dj The permittee mav request modifications to his permit.
(e) The filing of a request by a permittee for a permit
termination, modification, revocation and reissuance,
notification of planned changes, or anticipated noncompliance
does not stav anv permit term or condition.
{d) (jQ When a permit is modified, the proceedings shall
affect onlv those parts of the permit that are being modified.
(b) Emissions limitations, controls and requirements
contained in permits issued pursuant to the Section shall be
permanent, quantifiable, and otherw ise enforceable as a practical
matter under G.S. 143-215.1 14A. 143-215.1148. and
143-215, 114C.
Authorin- G.S. 145-21 5.3ia)(I i.( lai.ilbi:
! 43-2 15.114.4: 143-215. 11 4B: 143-2 15. INC.
143-215.108:
.0314 GENERAL PERMIT REQUIREMENTS
(a) All emissions limitations, controls, and other requirements
imposed bv a permit issued pursuant to this Section shall be at
least as stringent as any other applicable requirement as defined
under Rule .0103 of this Subchapter. The permit shall not waive
or make less stringent anv limitation or requirement contained in
any applicable requirement.
(c) The owner or operator of a source permitted under this
Section shall comply with the permit. Failure of the owner or
operator of a permitted source to adhere to the terms and
conditions of the permit shall be grounds for:
( 1 ) enforcement action:
(2) permit termination, revocation and reissuance, or
modification: or
(3) denial of permit renewal applications.
(d) A permit does not convev anv property rights of any sort.
or any exclusive privileges.
.Authorin- G.S. 143-215. 3(a)(1): 143-215.108.
.0315 SYNTHETIC MINOR FACILITIES
(a) A synthetic minor facility is a facilirs whose permit
contains terms and conditions to avoid the procedures of 15A
NCAC 2Q .0500. Title V Procedures.
(b) The owner or operator of a facility to which 1 5 A NCAC
20 .0500. Title V Procedures, applies mav choose to have terms
and conditions placed in his permit to restrict operation to limit
the potential to emit of the facility in order to remove the
applicability of 15A NCAC 2Q .0500 to the facility. An
application for the addition of such terms and conditions shall be
processed under this Section.
(c) A modification to a permit to remove terms and conditions
in tlie permit that removed the applicability of 15A NCAC 20
.0500 shall be processed under either this Section or 1 5 A NCAC
20 .0500. The applicant shall choose which procedures to
follow. However, if tfie terms and conditions are removed
following the procedures of tins Section, the permittee shall
submit a permit application under the procedures of 1 5.A NCAC
20 .0500 w ithin one v ear after the limiting terms and conditions
are removed.
(d) After a facility is issued a permit that contains terms and
conditions to remove the applicability of 1 5 A NCAC 20 .0500.
the facility shall comply with the permitting requirements of this
Section.
(e) The Director mav require monitoring, recordkeeping, and
reporting necessarv to assure compliance with the terms and
conditions placed in tlie permit to remove the applicability of
15A NCAC 20 .0500.
.Authorin- G.S 143-215. 3(aiili: 143-215.65: 143-215.66:
143-215. W(a)(10): 143-215.108.
SECTION .0400 - ACID RAIN PROCEDURES
.0401 PURPOSE AND APPLICABILITY
(a) The purpose of this Rule is to implement Phase 11 of the
federal acid rain program pursuant to the requirements of Title
IV of the Clean Air Act as provided in 40 CFR Part 72. Parts 72
and 76.
(b) The procedures and requirements under this Section do
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PROPOSED RULES
not apply until the EPA approves this Section and Section .0500
of this Subchapter.
{e) £b] Applicability.
(1 ) Each of the following units shall be an affected unit,
and any facility that includes such a unit shall be an
affected facility, subject to the requirements of the
Acid Rain Program:
(A) A unit listed in 40 CFR Part 73, Subpart B,
Table 1.
(B) A unit that is identified as qualifying for an
allowance allocation under 40 CFR 73.10
Table 2 or 3 and any other existing utility unit,
except a unit under Subparagraph (2) of this
Paragraph.
(C) A utility unit, except a unit under Subparagraph
(2) of this Paragraph, that:
(i) is a new unit;
(ii) did not serve a generator with a
nameplate capacity greater than 25
MWe on November 1 5, 1990, but serves
such a generator after November 15,
1990;
(iii) was a simple combustion turbine on
November 15, 1990 but adds or uses
auxiliary firing after November 15,
1990;
(iv) was an exempt cogeneration facility
under Part (2)(D) of this Paragraph but
during any three calendar year period
after November 15. 1990, sold to a
utility power distribution system, an
annual average of more than one third of
its potential electrical out-put capacity
and more than 219,000 MWe-hrs
electric output, on a gross basis;
(v) was an exempt qualifying facility under
Part (2)(E) of this Paragraph but at any
time after the later of November 15,
1990. or the date the facility commences
commercial operation, fails to meet the
definition of qualifying facility;
(vi) was an exempt independent power
production facility under Part (2)(F) of
this Paragraph but at any time after the
later of November 1 5. 1990. or the date
the facility commences commercial
operation, fails to meet the definition of
independent power production facility;
or
(vii) was an exempt solid waste incinerator
under Part (2)(G) of this Paragraph but
during any three calendar year period
after November 15, 1990, consumes 20
percent or more (on a Btu basis) fossil
fuel.
(2) The following types of units are not affected units
subject to the requirements of the Acid Rain Program:
(A) A simple combustion turbine that commenced
operation before November 15, 1990.
(B) Any unit that commenced commercial
operation before November 15, 1990, and that
did not, as of November 15,1 990, and does not
currently, serve a generator with a nameplate
capacity of greater than 25 MWe.
(C) Any unit that, during 1985, did not serve a
generator that produced electricity for sale and
that did not, as of November 15, 1990, and
does not currently, serve a generator that
produces electricity for sale.
(D) A co-generation facility which:
(i) for a unit that commenced construction
on or prior to November 15, 1990, was
constructed for the purpose of supplying
equal to or less than one-third its
potential electrical output capacity or
equal to or less than 219,000 MWe-firs
actual electrical output on an annual
basis to any utility power distribution
system for sale (on a gross basis). If the
purpose of construction is not known, it
will be presumed to be consistent with
actual operation from 1985 through
1987. However, if in any three calendar
year period after November 15, 1990,
such unit sells to a utility power
distribution system an annual average of
more than one-third of its potential
electrical output capacity and more than
219.000 MWe-hrs actual electrical
output (on a gross basis), that unit shall
be an affected unit, subject to the
requirements of the Acid Rain Program,
or
(ii) for units that commenced construction
after November 15, 1990, supplies equal
to or less than one-third its potential
electrical output capacity or equal to or
less than 219,000 MWe-hrs actual
electrical output on an annual basis to
any utility power distribution system for
sale (on a gross basis). However, if in
any three calendar year period after
November 15, 1990, such unit sells to a
utility power distribution system an
annual average of more than one-third
of its potential electrical output capacity
and more than 2 1 9,000 MWe-hrs actual
electrical output (on a gross basis), that
unit shall be an affected unit, subject to
the requirements of the Acid Rain
Program.
(E) A qualifying facility that:
(i) has, as of November 15. 1990, one or
more qualifying power purchase
commitments to sell at least 15 percent
of its total planned net output capacity;
m
MMi^mm^a^^m^^
A
PROPOSED RULES
and
(ii) consists of one or more units designed
b\ the owner or operator with total
installed net output capacit> not
exceeding 130 percent of the total
planned net output capacir\. If the
emissions rates of the units are not the
same, the Administrator shall designate
which units are exempt.
(F) An independent power production facilit> that:
(i) has. as of November 15. 1990. one or
more qualifying power purchase
commitments to sell at least 15 percent
of its total planned net output capacit> ;
and
(ii) consists of one or more units designed
by the owner or operator with total
installed net output capacit> not
exceeding 130 percent of the total
planned net output capacit\. If the
emissions rates of the units are not the
same, the Administrator shall designate
which units are exempt.
(G) A solid waste incinerator, if more than 80
percent (on a Btu basis) of the annual fuel
consumed at such incinerator is other than
fossil fuels. For a solid waste incinerator
which began operation before Januar> 1. 1985.
the a\ erage annual fuel consumption of non-
fossil fuels for calendar years 1985 through
1987 must be greater than 80 percent for such
an incinerator to be exempt. For a solid w aste
incinerator which began operation after
Januan. 1. 1985. the a\ erage annual fuel
consumption of non-fossil fuels for the first
three > ears of operation must be greater than 80
percent for such an incinerator to be exempt.
If. during an> three calendar \ear period after
No\ ember 15. 1990. such incinerator consumes
20 percent or more (on a Btu basis) fossil fuel,
such incinerator will be an affected source
under the Acid Rain Program.
(H) A non-utilir% unit.
(3) A certily ing official of an\ unit ma\' petition the
Administrator for a determination of applicabilit>
under 40 CFR 72.6(c). The .Administrator's
determination of applicability shall be binding upon
the Di\ision. unless the petition is found to ha\e
contained significant errors or omissions.
Authorin- G.S. 143-215. 3<ail 1 ): 143-215. WlaKS): 143-
215.108.
.0402 .ACID RAIN PERMITTING PROCEDURES
(a) For the purpose of this Rule the definitions contained in
40 CFR 72.2 and 76.2 and the measurements. abbre\ iations. and
acronxms contained in 40 CFR 72.3 shall appK.
(b) Affected units as defined in 40 CFR 72.6 and 72.6. 76.1.
or Paragraph (e^ (bJ(n of Rule .0401 of this Section shall
compK with the permit, monitoring, sulfur dioxide, nitrogen
oxides, excess emissions, recordkeeping and reporting. liabilit\.
and an\ other provisions as required in 40 CFR Part 72. Part 72
and 76, The term "permitting authorit)" shall mean Division of
Environmental Management, and the term "Administrator" shall
mean the Administrator of the United States Environmental
Protection Agency.
(c) If the provisions or requirements of 40 CFR Part 72 or 76
conflict with or are not included in Section .0500 of this
Subchapter, the then Part 72 or 76 pro\ isions and requirements
shall appK and take precedence.
A uthority G. S.
143-215.108.
143-2 15.3(a)(1): 143-215. W^(a)(8):
SECTION .0500 - TITLE V PROCEDURES
.0511 SYNTHETIC MINOR FACILITIES
(a) The owner or operator of a facilit> to which this Section
applies ma\ choose to ha\e terms and conditions placed in his
permit to restrict operation to limit the potential to emit of the
facilitv in order to remove the applicability of this Section to the
facilitv.
(b) An\ permit containing terms and conditions to remove the
applicability of this Section after one >ear after EPA approves
this Section shall be processed according to Rules .0521 and
.0522 of this Section when these terms and conditions are first
placed in the permit.
(c) After a facility is issued a permit that contains terms and
conditions to remove the applicabilitv of this Section, the facilir_>
shall compK with the permitting requirements of Section .0300
of this Subchapter.
fd4 — If the holder of a permit for a ssnthetic minor facilit>
applies to change a term or condition that removed his facilit}
from the applicabilit> of this Section, the application shall be
processed under this Section.
(e) The Director max require monitoring, recordkeeping, and
reporting necessar> to assure compliance with the terms and
conditions placed in the permit to remo\ e the applicabilitv of this
Section.
Authorin- G.S. 143-215. 3(a)(1): 143-215.65:
143-215. 10'(a)(10): 143-215.108.
143-215.66:
SECTION .0800 - EXCLUSIONARY RULES
.0801 PURPOSE AND SCOPE
(a) The purpose of this Section is to define categories of
facilities that are exempted from needing a permit under Section
.0500. Title V Procedures, of this Subchapter or the applicabilirs
of i5A NCAC 2D .1111 or 40 CFR Part 63 bv defining their
potential emissions to be less than:
( 1 ) 1 00 tons per v ear of each regulated air pollutant:
(2) 10 tons per year of each hazardous air pollutant: and
(3) 25 tons per vear of all hazardous air pollutants
combined:
as determined bv criteria set out in each individual source
^i^K^tfiffiiii
3. 1998
13:3
PROPOSED RULES
category rule. £A particular maximum achievable control
technology (MACT) standard promulgated under 40 CFR Part
63 may have a lower applicability threshold than those contained
in this Paragraph. The threshold contained in that MACT
standard shall be used to determine the applicability of that
MACT standard.]
£bj Coverage under the rules of this Section is voluntary. The
owner or operator of a facility or source qualified to be covered
under a rule in this Section that does not want to be covered
under that rule shall notify the Director in writing that he does
not want his facility covered under this Section, and the Section
shall no longer apply to that facility or source.
(¥) (c} A source cannot rely on emission limits or caps
contained in this Section to justify violation of any rate-based
emission limits or other applicable requirements.
(e) (d) Although a facility is exempted, by complying with
this Section, from the permitting procedures contained in Section
.0500, Title V Procedures, of this Subchapter, or the
applicability of 15A NCAC 2D . 1 1 1 1 or 40 CFR Part 63, it may
still need a permit under Section .0300, Construction and
Operation Permit, of this Subchapter unless it is exempted from
needing a permit by Rule .0102 of this Subchapter.
(e) Except for gasoline service stations and dispensing
facilities and dry cleaning facilities, any facility or source not
required to have a permit under this Subchapter shall not be
required to maintain records and report emissions as required
under this Section.
Authority^ G.S. 143-21 5.3(a): 143-21 5. 107(a)(10): 143-215.108.
.0803 COATING, SOLVENT CLEANING,
GRAPHIC ARTS OPERATIONS
(a) For the purposes of this Rule, the following definitions
apply:
( 1 ) "Coating operation" means a process in which paints,
enamels, lacquers, varnishes, inks. dyes, glues, and
other similar materials are applied to wood, paper,
metal, plastic, textiles, or other types of substrates.
(2) "Solvent cleaning operation" means the use of
solvents containing volatile organic compounds to
clean soils from metal, plastic, or other types of
surfaces.
(3) "Graphic arts operation" means the application of inks
to form words, designs, or pictures to a substrate,
usually by a series of application rolls each with only
partial coverage and usually using letterpress, offset
lithography, rotogravure, or flexographic process.
(b) Potential emissions for a coating operation, solvent
cleaning operation, or graphic arts operation shall be determined
using actual emissions without accounting for any air pollution
control devices to reduce emissions of volatile organic
compounds or hazardous air pollutants including
perchloroethylene from the coating operation, solvent cleaning
operation or graphic arts operation. All volatile organic
compounds and hazardous air pollutants that are also volatile
organic compounds and perchloroethylene are assumed to
evaporate and be emitted into the atmosphere at the source.
(c) Paragraphs (d) through (k) of this Rule do not apply to any
facility whose potential emissions are greater than or equal to:
(1) 100 tons per year of each regulated air pollutant;
(2) 10 tons per year of each hazardous air pollutant: or
(3) 25 tons per year of all hazardous air pollutants
combined;
as determined by criteria set out in each individual source
category rule. [A particular maximum achievable control
technology (MACT) standard promulgated under 40 CFR Part
63 may have a lower applicability threshold than those contained
in this Paragraph. The threshold contained in that MACT
standard shall be used to determine the applicability of that
MACT standard.]
(e) (dj The With the exception of Paragraph (c) of this Rule.
the owner or operator of a coating, solvent cleaning, or graphics
arts operation located at a facility not required to have a permit
under Section .0500. Title V Procedures, of this Subchapter in
accordance with Rule .0502. Applicability, of this Subchapter
shall be exempted from the requirements of Section .0500 of this
Subchapter, provided the owner or operator of the facility
complies with Paragraphs (e) through (i) of this Rule, as
appropriate.
(4) (e] Only Paragraph (b) of this Rule applies to coating
operations, solvent clean cleaning operations, or graphic arts
operations that are exempted from needing a permit under Rule
.0102 of this Subchapter.
(e) LQ The owner or operator of a facility whose potential
emissions:
( 1 ) of volatile organic compounds are less than 1 00 tons
per year but more than or equal to 75 tons per year;
(2) of each hazardous air pollutant is less than 10 tons per
year but more than or equal to 7.5 tons per year; or
(3) of all hazardous air pollutants combined are less than
25 tons per year but more than or equal to 1 8 tons per
year;
shall maintain records and submit reports as described in
Paragraphs (f) and (i) of this Rule.
(f) (g) For facilities covered under Paragraph (e) of this Rule,
the owner or operator shall:
(1) maintain monthly consumption records of each
material used containing volatile organic compounds
as follows:
(A) quantity of volatile organic compound in
pounds per gallon of each material used,
(B) pounds of volatile organic compounds of each
material used per month and total pounds of
volatile organic compounds of each material
used during the 1 2-month period ending on that
month,
(C) quantity of each hazardous air pollutant in
pounds per gallon of each material used.
(D) pounds of each hazardous air pollutant of each
material used per month and total pounds of
each hazardous air pollutant of each material
used during the 12-month period ending on that
month.
(E) quantity of all hazardous air pollutants in
pounds per gallon of each material used, and
(F) pounds of all hazardous air pollutants of each
7V(
mMmmmm^^u^m
PROPOSED RULES
material used per month and total pounds of all hazardous air
pollutants of each material used during the 12-month period
ending on that month: and
(2) submit to the Director each quarter, or more
frequently if required by a permit condition, a report
summarizing emissions of volatile organic compounds
and hazardous air pollutants containing the following:
(A) pounds volatile organic compounds used:
(i) for each month during the quarter, and
(ii) for each 12-month period ending on
each month during the quarter using the
12-month rolling average method:
(B) greatest quantity in pounds of an individual
hazardous air pollutant used:
(i) for each month during the quarter, and
(ii) for each 12-month period ending on
each month during the quarter using the
12-month rolling average method: and
(C) pounds of all hazardous air pollutants used:
(i) for each month during the quarter, and
(ii) for each 12-month period ending on
each month during the quarter using the
12-month rolling average method.
(#) IbJ The owner or operator of a facility whose potential
emissions:
(1) of volatile organic compounds are less than 75 tons
per \ ear.
(2) of each hazardous air pollutants is less than 7.5 tons
per > ear. and
(3) of all hazardous air pollutants combined are less than
1 8 tons per > ear.
shall maintain records and submit reports as described in
Paragraphs (h) and (i) of this Rule.
^ (ij For facilities covered under Paragraph (g) of this Rule,
the owner or operator shall submit to the Director by February
15th of each \ear. or more frequentK if required b\ a permit
condition, a report summarizing emissions of volatile organic
compounds and hazardous air pollutants containing the
following:
(1 ) pounds volatile organic compounds used during the
previous calendar > ear.
(2) pounds of the highest individual hazardous air
pollutant used during the previous \ear. and
(3) pounds of all hazardous air pollutants used during the
previous \ear.
(4^ (jj In addition to the specific reporting requirements for
sources covered under Paragraphs (e) and (g) of this Rule, the
owner or operator of the source shall:
( 1 ) maintain purchase orders and invoices of materials
containing volatile organic compounds, which shall be
made available to the Director upon request to
confirm the general accuracv' of the reports filed under
Paragraphs (0 or (h) of this Rule regarding materials
usage:
(2) retain purchase orders and invoices for a period of at
least three \ ears:
(3 ) report to the Director anv exceedance of a requirement
of this Rule within one vseek of occurrence: and
(4) certify' all submittals as to the truth, completeness, and
accuracy of all information recorded and reported
over the signature of the appropriate official as
identified in Rule .0304(j) of this Subchapter.
(j) £k) Copies of all records required to be maintained under
Paragraphs (f). (h) or (i) of this Rule shall be maintained at the
facility and shall be available for inspection by personnel of the
Division on demand.
fk) iU The Director shall maintain a list of facilities covered
under this Rule.
Authority G.S. 143-2 15.3(a): 143-215. 10~(a/f 10): 143-215.108.
.0808 PEAK SHAVING GENERATORS
(a) This Rule applies to facilities whose onlv sources
requiring a permit is one or more peak shaving generators and
their associated fuel storage tanks.
(b) For the purpose of this Rule, potential emissions shall be
determined using actual total energy production.
(c) Anv facility whose total energy production from one or
more peak shaving generators is less than or equal to 6,500,000
kw-hrs per vear shall be exempted from the requirements of
Section .0500 of this Subchapter.
(d) The owner or operator of any peak shaving generator
exempted by this Rule from Section .0500 of this Subchapter
shall submit. b\ February 15th of each year a report containing
the following information:
m
the name and location of the facility;
the number and size of ah peak shaving generators
located at the facility :
the total number of hours of operation of a]] peak
shaving generators located at the facility:
the actual total amount of energ\ production per year
from all peak shaving generators located at the
facility; and
the signature of the appropriate official as identified
in Rule .0304(i) of this Subchapter certifying as to the
truth and accuracy of the report.
(e) The owner or operator of any facility exempted by this
Rule from Section .0500 of thjs Subchapter shall provide
documentation of number, size, number of hours of operation,
and amount of total energy production per rolling 12-month
period from all peak shav ing generators located at the facility to
the Director upon request. The owner or operator of a facility
exempted by this Rule from Section .0500 of this Subchapter
shall retain records to document the amount of total energy
production per year for the previous three vears.
(f) For facilities covered bv this Rule, the owner or operator
shall report to the Director anv exceedance of a requirement of
this Rule within one week of its occurrence.
.4uthorit\- G.S. 143-2 15.3(a): 143-215. I0'(a)(10): 143-215.108.
W W X W X W X
W W X X X X
Notice IS hereby given in accordance with G.S. 150B-21.2
that the NC Marine Fisheries Commission intends to adopt
the rules cited as 15.4 NC.4C 3M.0515: 3P .0301-0304: amend
302
\ORTH CAROLINA REGISTER
AueustS. 1998
13:3
PROPOSED RULES
the rules cited as ISA NCAC 31.0101: 3J .0107. and. 0109: 3M
.0503. .0507: 30.0303. .0306: 3P .0201 -.0203: and repeal the
rule cited as 15 NCAC 3P .0103. Notice of Rule-making
Proceedings was published in the Register on April I, 1998 for
15 NCAC 3M.0503 and 30.0306: June 1, 1998 for 15A NCAC
31 .0101: 3J .0107. .0109: 3M .0503. .0507. .0515: 30.0303.
.0306: 3P.0103..0201-.0203, .0301-.0304.
Proposed Effective Date: April 1. 1999
Public Hearings will be conducted at 7:00 p.m. and will be
followed by a public meeting at the following locations:
August 20. 1998
High Point. NC
Radisson
135 South Main Street
August 25. 1998
Manteo. NC
Airport Road
September 10. 1998
Beaufort. NC
Duke University Marine Lab
Pivers Island
September 21. 1998
Wilmington, NC
UNCW
Cameron
601 S College Road
Reason for Proposed Action:
ISA NCAC 31 .0101: This amendment will define long haul and
swipe net operations and gear associated with these operations.
ISA NCAC 3J .0107: This amendment will require escape
panels in flounder pound nets. These panels allow small,
undersize flounder to escape capture.
ISA NCAC 3J .0109: This amendment will require escape
panels in long haul nets. These panels Mill allow small, juvenile
fish to escape capture.
ISA NCAC 3M .0S03: Two recent joint .Atlantic States Marine
Fisheries Commission/Mid-.4llantic Fishery Management
Council actions require that North Carolina adopt these
amendments to remain in compliance with the Summer
Flounder. Scup and Black Sea Bass Fisher}' Management Plan.
Amendments to G.S. 143B-289. 52(e) included in the Fisheries
Reform Act of 1997 includes the authorit}- of the Marine
Fisheries Commission to adopt rules to maintain compliance.
ISA NCAC 3M .0S07: .Adoption of an interim rule by the
National Marine Fisheries Service increasing the size limit for
blue and white marlin allows the Marine Fisheries Commission
to adopt a rule to comply with these increases in size.
Amendment of this rule to delete references to dolphin will be
necessary if 15A NCAC 3 M .0515 is adopted.
ISA NCAC 3M .OSIS: Adoption of this rule will prevent
expansion of the harvest of dolphin by the longline fishery and
prevent user conflict.
ISA NCAC 30.0303: The 1997 Fisheries Reform Act added the
vessel endorsement to sell as a license to be placed under the
moratorium. (From 1994-1997, the moratorium applied to
vessel licenses, crab licenses, shellfish licenses, and non-vessel
endorsements to sell.) The Appeals Panel operating rules
adopted by the Commission need to be amended to take this
recent change into account.
ISA NCAC 30 .0306: Prior to the Fisheries Reform Act of
1997. the Appeals Panel, in their review of petitions for new
licenses, denied applications for subsistence purposes because
licensees were entitled to obtain endorsement to sell licenses
and enter the fishery with participants who fish and sell their
catch. The Fisheries Reform Act placed a moratorium on the
issuance of Endorsement to Sell Licenses. Therefore, the
Appeals Panel can now issue hardship licenses to individuals
who need the license for subsistence without being concerned
that those individuals can obtain an Endorsement to Sell
Licenses. The subsistence license would entitle the licensee to
harvest resources with limited commercial gear at recreational
limits. The 1997 Fisheries Reform Act added the vessel
endorsement to sell as a license to be placed under the
moratorium. (From 1994-1997. the moratorium applied to
vessel licenses, crab licenses, shellfish licenses, and non-vessel
endorsements to sell.) The Appeals Panel operating rules
adopted by the Commission need to be amended to take this
recent change into account.
ISA NCAC 3P. 0103: Petitions for Regulatory Activity will be
in a new section - ISA NCAC 3P .0300.
ISA NCAC 3 P. 020 1 -.0203: Required by G.S ISOB-4 to outline
the circumstances in which declaratory rulings shall or shall not
be issued.
ISA NCAC 3P .0301-.0304: To clarify the regulatoiy petition
process.
Comment Procedures: Comments, both written and oral, may
be submitted at the four scheduled public hearings. Written
comments are encouraged and may be submitted to the Marine
Fisheries Commission, Juanita Gaskill, PO Box 769, Morehead
City, NC 28557. These written and oral comments must be
received no later than October 2, 1998. Oral presentation
lengths may he limited, depending on the number of people that
wish to speak at the public hearings. The Marine Fisheries
Commission will hold public meetings at the conclusion of each
of the four public hearings to receive public comments on limits
(gear and fish) for recreational commercial gear licenses,
coastal habitat protection plans, and other topics of interest to
the public.
Fiscal Note: These Rules do not affect the expenditures or
revenues of state or local government funds. These Rules do not
have a substantial economic impact of at least five million
dollars ($5,000,000) in a 12-month period.
CHAPTER 3 - MARINE FISHERIES
SUBCHAPTER 31 - GENERAL RULES
m
NORTH CAROLINA REGISTER
AusustS, 1998
303
PROPOSED RULES
SECTION .0100 - GENERAL RULES
.0101 DEFINITIONS
(a) All detmitions set out in G.S. 1 13. Subchapter IV appl\
to this Chapter.
(b) The following additional terms are hereb> defined:
(1)
Commercial Fishing Equipment. All fishing
equipment used in coastal fishing waters except;
(2)
(3)
(5)
(6)
(7)
(8)
(9)
111)
12)
(13)
(A)
(B)
(C)
(D
(E)
Seines less than 12 feet in length:
Spears:
A dip net having a handle not more than eight
feet in length and a hoop or frame to which the
net is attached not exceeding 60 inches along
the perimeter:
Hook-and-line and bait-and-line equipment
other than multiple-hook or multiple-bait
trotline:
A landing net used to assist in taking fish w hen
the initial and primarv' method of taking is b\
the use of hook and line; and
(F) Cast Nets.
Fixed or stationan. net. A net anchored or staked to
the bottom, or some structure attached to the bottom.
at both ends of the net.
Mesh Length. The diagonal distance from the inside
of one knot to the outside of the other knot, when the
net is stretched hand-tight.
Possess. An\ actual or constructi\ e holding whether
under claim of ownership or not.
Transport. Ship. carr\. or cause to be carried or
moved b\' public or private carrier by land. sea. or air.
Use. EmploN. set. operate, or permit to be operated or
emplo\ed.
Purse Gill Nets. Any gill net used to encircle fish
when the net is closed b\ the use of a purse line
through rings located along the top or bottom line or
elsew here on such net.
Gill Net. A net set \erticall\ in the water to capture
tlsh b\ entanglement b\ the gills in its mesh as a result
of net design, construction, mesh size, webbing
diameter or method in which it is used.
Seine. A net set \erticall\ in the water and pulled b\
hand or power to capture fish bs encirclement and
confining fish within itself or against another net. the
shore or bank as a result of net design, construction,
mesh size, webbing diameter, or method in which it is
used.
Internal Coastal \\'aters or Internal Waters. All
coastal fishing waters except the Atlantic Ocean.
Channel Net. A net used to take shrimp which is
anchored or attached to the bottom at both ends or
w ith one end anchored or attached to the bottom and
the other end attached to a boat.
Dredge. A de\ ice towed b\ engine power consisting
of a frame, tooth bar or smooth bar. and catchbag used
in the har\est of o\sters. clams, crabs, scallops, or
conchs.
Mechanical methods for clammina. Includes, but not
limited to. dredges, hydraulic clam dredges, stick
rakes and other rakes when towed by engine power,
patent tongs, kicking with propellers or deflector
plates w ith or without traw Is. and an\ other method
that utilizes mechanical means to harvest clams.
(14) Mechanical methods for o\stering. Includes, but not
limited to. dredges, patent tongs, stick rakes and other
rakes when towed b)' engine power and any other
method that utilizes mechanical means to harvest
oysters.
(15) Depuration. Purification or the removal of
adulteration from li\'e ONSters. clams, and mussels by
an\ natural or artificialh controlled means.
(16) Peeler Crab. A blue crab that has a soft shell
de\eloping under a hard shell and having a definite
pink, white, or red line or rim on the outer edge of the
back fin or flipper.
( 1 7) Length of finfishT
(A) Total length is determined by measuring along
a straight line the distance from the tip of the
snout with the mouth closed to the tip of the
compressed caudal (tail) fin.
(B) Fork length is determined b\ measuring along
a straight line the distance from the tip of the
snout with the mouth closed to the middle of
the fork in the caudal (tail) fin.
(C) Fork length for billfish is measured from the
tip of the lower jaw to the middle of the fork of
the caudal (tail) tin.
(18) Licensee. AnN person holding a \alid license from
the Department to take or deal in marine fisheries
resources.
(19) Aquaculture operation. An operation that produces
artificialh propagated stocks of marine or estuarine
resources or obtains such stocks from authorized
sources for the purpose of rearing in a controlled
environment. A controlled en\ ironment provides and
maintains throughout the rearing process one or more
of the following: predator protection, food, water
circulation. salinit\. or temperature controls utilizing
proven technolog> not found in the natural
en\ironment.
(20) Critical habitat areas. The fragile estuarine and marine
areas that support ju\enile and adult populations of
economicalK important seafood species, as well as
forage species important in the food chain. Critical
habitats include nursen. areas, beds of submerged
aquatic vegetation, shellfish producing areas,
anadromous fish spawning and anadromous fish
nursep. areas, in all coastal fishing waters as
determined through marine and estuarine survey
sampling. Critical habitats are \ital for portions, or
the entire life cNcle. including the earl) growih and
de% elopment of important seafood species.
(A) Beds of submerged aquatic vegetation are those
habitats in public trust and estuarine waters
vegetated with one or more species of
submersed \eeetation such as eelsrass (Zostera
3U4
SORTH CAROLINA REGISTER
A us list 3, 1998
PROPOSED RULES
(21)
(22)
(23)
(24)
marina), shoalgrass (Halodule wrightii) and
widgeongrass (Ruppia maritima). These
vegetation beds occur in both subtidal and
intertidal zones and may occur in isolated
patches or cover extensive areas. In either
case, the bed is defined by the presence of
above-ground leaves or the below-ground
rhizomes and propagules together with the
sediment on which the plants grow. In
defining beds of submerged aquatic vegetation,
the Marine Fisheries Commission recognizes
the Aquatic Weed Control Act of 1991 (G.S.
113A-220 et. seq.) and does not intend the
submerged aquatic vegetation definition and its
implementing rules to apply to or conflict with
the non-development control activities
authorized by that Act.
(B) Shellfish producing habitats are those areas in
which economically important shellfish, such
as, but not limited to clams, oysters, scallops,
mussels, and whelks, whether historically or
currently, reproduce and survive because of (25)
such favorable conditions as bottom type,
salinity, currents, cover, and cultch. Included
are those shellfish producing areas closed to
shellfish harvest due to pollution.
(C) Anadromous fish spawning areas are defined
as those areas where evidence of spawning of
anadromous fish has been documented by
direct observation of spawning, capture of
running ripe females, or capture of eggs or
early larvae. (26)
(D) Anadromous fish nursery areas are defined as
those areas in the riverine and estuarine
systems utilized by post-larval and later
juvenile anadromous fish.
Intertidal Oyster Bed. A formation, regardless of size
or shape, formed of shell and live oysters of varying
density.
North Carolina Trip Ticket. Multiple-part form
provided by the Department to fish dealers who are
required to record and report transactions on such (27)
forms.
Transaction. Act of doing business such that fish are
sold, offered for sale, exchanged, bartered, distributed
or landed. The point of landing shall be considered a
transaction when the fisherman is the fish dealer. (28)
Live rock. Living marine organisms or an assemblage
thereof attached to a hard substrate including dead
coral or rock (excluding mollusk shells). For
example, such living marine organisms associated
with hard bottoms, banks, reefs, and live rock may (29)
include, but are not limited to:
(A) Animals:
(i) Sponges (Phylum Porifera);
(ii) Hard and Soft Corals, Sea Anemones (30)
(Phylum Cnidaria):
(1) Fire corals (Class Hydrozoa);
(B)
Coral
(A)
(B)
(II) Gorgonians, whip corals, sea
pansies, anemones, Solenastrea
(Class Anthozoa);
(iii) Bryozoans (Phylum Bryozoa);
(iv) Tube Worms (Phylum Annelida):
(I) Fan worms (Sabellidae);
(II) Feather duster and Christmas tree
worms (Serpulidae);
(III) Sand castle worms
(Sabellaridae).
(v) Mussel banks (Phylum
Mollusca:Gastropoda);
(vi) Colonial barnacles (Arthropoda:
Crustacea: Megabalanus sp.).
Plants:
(i) Coralline algae (Division Rhodophyta);
(ii) Acetabularia sp., Udotea sp., Halimeda
sp., Caulerpa sp. (Division
Chlorophyta);
(iii) Sargassum sp., Dictyopteris sp., Zonaria
sp. (Division Phaeophyta).
Fire corals and hydrocorals (Class Hydrozoa);
Stony corals and black corals (Class Anthozoa,
Subclass Scleractinia);
(C) Octocorals; Gorgonian corals (Class Anthozoa,
Subclass Octocorallia):
(i) Sea fans (Gorgonia sp.);
(ii) Sea whips (Leptogorgia sp. and
Lophogorgia sp.);
(iii) Sea pansies (Renilla sp.).
Shellfish production on leases and franchises:
(A) The culture of oysters, clams, scallops, and
mussels, on shellfish leases and franchises
from a sublegal harvest size to a marketable
size.
(B) The transplanting (relay) of oysters, clams,
scallops and mussels from designated areas
closed due to pollution to shellfish leases and
franchises in open waters and the natural
cleansing of those shellfish.
Shellfish marketing from leases and franchises. The
harvest of oysters, clams, scallops, mussels, from
privately held shellfish bottoms and lawful sale of
those shellfish to the public at large or to a licensed
shellfish dealer.
Shellfish planting effort on leases and franchises. The
process of obtaining authorized cultch materials, seed
shellfish, and polluted shellfish stocks and the
placement of those materials on privately held
shellfish bottoms for increased shellfish production.
Pound Net. A fish trap consisting of a holding pen,
one or more enclosures, and a lead or leaders. The
lead(s), enclosures, and holding pen are not conical,
nor are they supported by hoops or frames.
Educational Institution. A college, university or
community college accredited by a regional
accrediting institution.
m
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PROPOSED RULES
tlD
133J
Long Haul Operations. A haul seine toued between
two boats.
Swipe Net Operations. A haul seine towed by one
boat.
Bunt Net. The last encircling net of a long haul or
swipe net operation constructed of small mesh
webbing. The bunt net is used to form a pen or pound
from which the catch is dipped or bailed.
Authority G.S. 113-154: N3B-289.4.
SUBCHAPTER 3J - NETS, POTS, DREDGES, AND
OTHER FISHING DEVICES
SECTION .0100 - NET RULES, GENERAL
.0107 POUND NETS
(a) It is unlawfijl to use pound or i^^^e nets in internal coastal
fishing waters without the owner's identification being clearK
printed on a sign no less than six inches square. secureK
attached on an outside comer stake of each such net. Such
identification must include one of the following:
( 1 ) For pound nets, the pound net permit number and the
owner's last name and initials.
(2) For fyke nets, the owTier's N.C. motorboat registration
number or the owner's last name and initials.
An\ pound or f\ke net or an> part thereof found set in internal
coastal fishing waters without proper identification will be in
violation and ma\ be removed and disposed of in accordance
with G.S. 11 3-1 3'?.
(b) It is unlawful to set pound nets, or an\ part thereof except
location identification stakes at each end of proposed new
locations without tlrst obtaining a Pound Net Permit from the
Fisheries Director
(I) For proposed new locations, the Fisheries Director
shall issue a public notice of intent to consider
issuance of a Pound Net Permit, and ma\ hold public
meetings to take comments on the proposed pound net
set. The Fisheries Director shall appro\ e or den\ the
permit uithin 60 da\s of application. The Fisheries
Director ma\ den\ the permit application if it is
determined that granting the permit will be
inconsistent with one or more of the following
permitting criteria:
(A) The application is in the name of an indi\idual.
(B) The proposed pound net set. either alone or
when considered cumulatively with other
existing pound net sets in the area, will not
unduK interfere w ith public navigation.
(C) The proposed pound net set. either alone or
when considered cumulatively with other
existing pound net sets in the area, will not
unduK interfere w ith existing, traditional uses
of the area other than navigation.
(D) The proposed pound net set will not interfere
with the rights of an\ riparian or littoral
landowner, including the construction or use of
piers.
(E) The proposed pound net set will not, by its
proximate location, unduly interfere with
existing pound net sets in the area.
(F) The applicant has in the past complied with
fisheries laws related to pound nets.
(G) The proposed pound net set is in the public
interest.
Approval ma},- be conditional based upon the
applicant's continuing compliance with specific
conditions contained in the Pound Net Permit that
would ensure that the operation of the pound net is
consistent w ith the criteria for permit denial set out in
Parts (A) through (G) of this Subparagraph. The
Fisheries Director's final decision to approve or deny
the Pound Net Permit application ma\ be appealed b>'
filing a petition for a contested case hearing, in
writing, within 60 days notice of such action, with the
Office of Administrative Hearings.
(2) An application for renewal of an existing Pound Net
Permit shall be filed not less than 10 da\s prior to the
date of expiration of the existing permit, and shall not
be processed unless filed by the prior permittee.
When a written objection to a renewal has been
received during the term of the existing permit, the
Fisheries Director shall review the renewal
application under the criteria for issuance of a new
Pound Net Permit, and ma\ decline to renew the
permit accordingly.
(3) A Pound Net Permit, whether a new or renewal
permit, shall expire 365 da\s from the date of
issuance.
(c) It is unlawftjl to abandon an existing pound net set without
completeK removing from the public bottom or coastal waters
all stakes and associated structures, gear and equipment w ithin
30 da> s. or to fail within 30 da\s to completeK remo\ e from the
public bottom or coastal waters all stakes and other structures,
gear and equipment associated with an>' pound net set for w hich
a permit is re\oked or denied. Pound nets shall be fulK
operational and subject to inspection during the peak of their
respective fishing seasons. Consideration shall be given for
unusualK se\ere weather conditions which prevent the nets from
being fulK operational during the inspection period. Herring
pounds max be inspected two weeks prior to or after April 1.
sciaenid pounds r^vo weeks prior to or after Jul>' 15. flounder
pounds two weeks prior to or after October 1 5. bait pounds two
weeks prior to or after April 15. and shrimp pounds two weeks
prior to or after June 15. A violation under this Paragraph shall
be grounds for the Fisheries Director to re\ oke an\ other Pound
Net Permits held by the violator and for denial of an\ future
pound net set proposed b\ the offender
(d) It is unlawful to transfer ownership of a pound net without
notification to the Di\ision of Marine Fisheries within 30 da\s
of the date of the transfer Such notification shall be made b>'
the new owner in writing and shall be accompanied b\ a cop\ of
the pre\ ious owner's permit and an application for a pound net
permit in the new owner's name. Failure to do so shall result in
re\ocation of the pound net permit.
(e) E\en, pound net set shall ha\e a marked na\igational
A
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I\A REGISTER
Ausust 3.
1998
13:3
PROPOSED RULES
opening of at least 25 feet in width at the end of every third
pound. Such opening shall be marked with yellow light
reflective tape or devices on each side of the opening. The light
reflective tape or devices shall be affixed to a stake of at least
three inches in diameter, shall cover a vertical distance of not
less than 12 inches, and shall be visible from all directions by a
vessel approaching the pound net set. In addition, every pound
net in internal coastal fishing waters shall have yellow light
reflective tape or devices on each pound. The light reflective
tape or devices shall be affixed to a stake of at least three inches
in diameter on the offshore end of each pound, shall cover a
vertical distance of not less than 12 inches, and shall be visible
fi-om all directions by a vessel approaching the pound net set. If
a permittee notified of a violation under this Paragraph fails or
refuses to take corrective action sufficient to remedy the
violation within 15 days of receiving notice of the violation, the
Fisheries Director shall revoke the permit.
(f) In Core Sound, it is unlawful to use pound nets in the
following areas except that only those persons holding a valid
pound net permit within the specified area as of March 1 , 1994,
may renew their permits subject to the requu^ements of this Rule:
(1) That area bounded by a line beginning at Green Day
Marker #3 near Hog Island Point running 124° (M) to
Green Flasher #13; thence 026° (M) to Green Flasher
#11; thence 294° (M) to a point on shore north of
Great Ditch 34° 58' 54" N - 76° 15' 06" W; thence
following the shoreline to Hog Island Point 34° 58'
27" N - 76° 15' 49" W; thence 231° (M) back to
Green Day Marker #3.
(2) That area bounded by a line beginning at Green Day
Marker #3 near Hog Island Point running 218° (M)to
Cedar Island Point 34° 57' 33" N - 76° 16' 34" W;
thence 156° (M) to Red Flasher #18; thence 01 1 ° (M)
to Red Flasher #2; thence 302° (M) back to Green
Marker #3.
(3) That area bounded by a line beginning on Long Point
34° 56' 52" N- 76° 16' 42" W; thence running 105°
(M) to Red Marker #18; thence running 220° (M) to
Green Marker #19; thence following the six foot
contour past the Wreck Beacon to a point at 34° 53'
45" N - 76° 18' 11" W; thence 227° (M) to Red
Marker #26; thence 229° (M) to Green Marker #27;
thence 271° (M) to Red Flasher #28; thence 225 ° (M)
to Green Flasher #29; thence 256° (M) to Green
Flasher #3 1 ; thence 22 1 ° (M) to Green Flasher #35;
thence 216° (M) to Green Flasher #37; thence 291 °
(M) to Bells Point 34° 43' 42" N - 76° 29' 59" W;
thence north following the shoreline of Core Sound
across the mouth of Jarrett Bay, Oyster Creek, Fulcher
Creek, Willis Creek, Nelson Bay, Styron Bay, East
Thorofare Bay and Rumley Bay, back to Long Point.
(g) In Pamlico Sound, it is unlawfijl to set a pound net, pound
net stakes, or any other related equipment without radar
reflective metallic material and yellow light reflective tape or
devices on each end of the pound net set. The radar reflective
material and the light reflective tape or devices must be affixed
to a stake of at least three inches in diameter, must cover a
vertical distance of not less than 12 inches, and must be
detectable by radar and light from a vessel when approached
from all directions. Light reflective tape or devices may be
affixed to the radar reflective material,
(h) Escape Panels:
(1) The Fisheries Director may, by proclamation, require
escape panels in pound nets and may impose any or
all of the following restrictions on the use of escape
panels:
(A)fl-) Specify size, number, and location.
tB}(3) Specify mesh length, but not more than six
inches.
(C)f^ Specify time or season.
tD)f4) Specify areas.
£2} It is unlawful to use flounder pound nets without four
unobstructed escape panels m each pound. The
escape panels must be fastened to the bottom and
comer ropes on each wall on the side and back of the
pound opposite the heart. The escape panels must be
a minimum mesh size of five and one-half inches,
hung on the diamond, and must be at least six meshes
high and eight meshes long.
Authority G.S. 113-134: 113-152; 113-182; 113-221;
1 43 B-2 89.53.
.0109 LONG HAUL/SWIPE NET FISHING
OPERATIONS
It is unlawful to tow or pull a net in a long-haul or swipe net
fishing operation:
( 1 ) Without a floating buoy attached a minimum of every
100 yards along the cork line. The buoy shall be
international orange and shall be no less than five
inches in diameter and no less than 11 inches in
length; and
(2) Without a flag, square in shape, international orange
in color, at least 24 inches by 24 inches in size, fiying
in the rigging so as to be visible when approaching the
vessel from any direction.
(3) South and west of a line beginning on the west shore
of Pamlico Sound at Bluff Point 35° 19' 32" N - 76°
09' 20" W; thence running 129° (M) to a point on
shore on Ocracoke Island at 35° 08' 00" N - 75° 55'
00" W. without escape panels as follows:
(a) For long haul operations, two panels four feet
deep and six feet long must be installed in the
bailing end of the bunt net.
(b) For swipe net operations, two panels three feet
deep and five feet long must be installed in the
bailing end of the bunt net.
(c) One panel shall be installed within 12 inches of
the float line and the other panel shall be
installed within 12 inches of the lead (bottom)
line.
£d} The panels shall be constructed of
unobstructed trawl rings with an inside
diameter no less than one and nine-sixteenth
inches tl 9/16"). The rings shall be fastened
together at a maximum of four points per ring.
13:3
NORTH CAROUN,
msa^^m^^
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PROPOSED RULES
Authority G.S. 113-134: 113-IS2: 143B-289.4.
SUBCHAPTER 31V1 - FINFISH
SECTION .0500 - OTHER FINFISH
.0503 FLOUNDER
(a) It is unlawful to possess flounder:
( 1 ) Less than 1 3 inches total length taken from internal
waters:
(2) Less than 14 inches total length taken from the
Atlantic Ocean with commercial fishing equipment or
by hook-and-line or gig if claiming the exemption
specified in Paragraph (t~) of this Rule:
(3) Less than 15 \A^ inches total length taken from the
Atlantic Ocean by hook-and-line or gig.
(b) From Between October 1 through and April 30. it shall be
unlawful to use a trawl in the Atlantic Ocean within three miles
of the ocean beach from the North Carolina/Virginia state line
(35° 33' N) to Cape Lookout (34° 36' N) unless each trawl has
a cod end (tailbag) mesh length of greater than 5 '2 inches or
larger diamond mesh (stretched) or 6 inches or larger square
mesh (stretched) applied throughout the bod\. e\tension(s) and
the cod end (tailbag) of the net cod end for at least 75 continuous
meshes forward of the terminus (end) of the net. or the terminal
one third portion of a net. measured from the terminus of the cod
end to the head rope for cod ends with less than 75 meshes,
except as provided in Paragraphs (h) and (i) of this Rule.
(c) License to Land Flounder from the Atlantic Ocean:
(1) It is unlawful to land more than 100 pounds per trip of
flounder taken from the Atlantic Ocean unless the
vessel has been issued a License to Land Flounder
from the Atlantic Ocean.
(2) It is unlawful for a fish dealer to purchase or offload
more than 100 pounds of flounder taken from the
Atlantic Ocean b\ a vessel that has not first procured
a valid North Carolina License to Land Flounder from
the Atlantic Ocean.
(3) To qualiiA for a North Carolina License to Land
Flounder from the Atlantic Ocean, a vessel shall have:
(A) been licensed under G.S. 1 13-152 or 1 13-153
during any two of the 1992-93. 1993-94. or
1994-95 license years, and
(B) landed in North Carolina at least 1 .000 pounds
of flounder each \ ear from the Atlantic Ocean
during any two of the 1992-93. 1993-94. or
1994-95 license years for which the vessel was
licensed to land in North Carolina.
(4) At least 10 da\s prior to issuance, applicants for the
license shall complete an application form provided
by the Division of Marine Fisheries and submit it to
the North Carolina Division of Marine Fisheries. Post
Office Box 769. 3441 Arendell Street. Morehead
City. North Carolina 28557. The following
information is required:
(A) Valid documentation papers or current motor
boat registration or copy thereof;
(B) Proof of required licenses and flounder
landings data for that vessel during the years
the vessel was licensed.
Licenses shall be issued to qualifying vessels at no fee
and only from the Morehead City Office of the
Division of Marine Fisheries.
(5) Licenses may only be transferred:
(A) with the transfer of the ownership of a vessel
holding a License to Land Flounder from the
Atlantic Ocean to the new owner of that vessel;
vessel, or
(B) by the owner of a vessel to another vessel
under the same ownership. The vessel owner
is only eligible for the same number of
Licenses to Land Flounder from the Atlantic
Ocean for which his boats qualify; qualify'.
(C) any transfer of license under this Paragraph
must be facilitated through the Division of
Marine Fisheries Morehead City Office only.
(6) It is unlawful for any individual to land flounder from
the Atlantic Ocean without having ready at hand for
inspection a valid License to Land Flounder from the
Atlantic Ocean, except as specified in Subparagraph
(c)(1) of this Rule.
(7) Suspension or Revocation:
(A) A License to Land Flounder from the Atlantic
Ocean issued under this Rule shall be subject
to suspension or revocation pursuant to the
provisions of 15A NCAC 3P. except that this
license shall be subject to revocation pursuant
to the provisions of G.S. 113-166 when the
licensee is convicted of a criminal offense
within the jurisdiction of the Department under
the provisions of Subchapter IV of G.S. 113, or
of the rules of the Marine Fisheries
Commission adopted under the authority of
that Subchapter
(B) The Division may commence proceedings
under 15A NCAC 3P. for suspension or
revocation of a License to Land Flounder from
the Atlantic Ocean if it finds:
(i) the license was obtained by providing
any false information or willfully
omitting required information when the
information is material to the securing
of the license; or
(ii) the license was falsified, fraudulently
altered, or counterfeited; or
(iii) the licensee practices any fraud or
deception designed to evade the
provisions of this Rule or reasonable
administrative directives made under the
authority of this Rule or G.S. 113-
182(b)(3).
(d) It is unlawful to transfer flounder taken from the Atlantic
Ocean from one vessel to another
(e) It is unlawful to possess more than eight +0 flounder per
person per da\ taken bv hook-and-line or gig from the Atlantic
Ocean.
Ausust3,I998
13:3
PROPOSED RULES
(f) Persons fishing from a vessel with a valid vessel
endorsement to sell or persons fishing but not from a vessel who
hold a valid nonvessel endorsement to sell are exempt from the
possession limit in Paragraphs (a)(3) and (e) of this Rule.
(g) Tailbag liners of any mesh size, the multiple use of two or
more cod ends, or other netting material that in any way could
restrict the legal size mesh required by this Rule, shall not be
used or possessed on the deck of a vessel in the Atlantic Ocean
from between October 1 through and April 30 from the North
Carolina/Virginia state line (36° 33' N) to Cape Lookout (34°
36' N).
(h) Trawls with a cod end mesh size smaller than described in
Paragraph (b) of this Rule may be used or possessed on the deck
of a vessel provided not more than 1 00 pounds of flounder per
trip from May 1 through October 3 1 or more than 200 pounds
from November 1 through April 30 is possessed aboard or
landed from that vessel.
(i) Flynets are exempt from the flounder trawl mesh
requirements if they meet the following definition:
( 1 ) The net has large mesh in the wings that measure 8
inches to 64 inches;
(2) The first body section (belly) of the net has 35 or
more meshes that are at least 8 inches; and
(3 ) The mesh decreases in size throughout the body of the
net to as small as 2 inches or smaller towards the
terminus of the net.
(j) Commercial Season.
(1 ) The North Carolina season for landing ocean-caught
flounder shall open January 1 each year. If 70 percent
of the quota allocated to North Carolina in accordance
with the joint Mid-Atlantic Fishery Management
Council/Atlantic States Marine Fisheries Commission
Mid Atlantic Fisheries Management Council Atlantic
States — Marine — Fisheries — Commission Fishery
Management Plan for Summer Flounder is projected
to be taken, the Fisheries Director shall, by
proclamation, close North Carolina ports to landing of
flounder taken from the ocean.
(2) The season for landing flounder taken in the Atlantic
Ocean shall reopen November 1 if any of the quota
allocated to North Carolina in accordance with the
joint Mid-Atlantic Fishery Management
Council/Atlantic States Marine Fisheries Commission
Mid Atlantic Fisheries Management Council Atlantic
States — Marine — Fisheries — Commission Fishery
Management Plan for Summer Flounder remains. If
after reopening, 100 percent of the quota allocated to
North Carolina in accordance with the joint Mid-
Atlantic Fishery Management Council/Atlantic States
Marine Fisheries Commission Mid Atlantic Fisheries
Management Council Atlantic States Marine Fisheries
Commission Fishery Management Plan for Summer
Flounder is projected to be taken prior to the end of
the calendar year, the Fisheries Director shall, by
proclamation, close North Carolina ports to landing of
flounder taken from the ocean.
(3) During any closed season prior to November 1,
vessels may land up to 100 pounds of flounder per
trip taken from the Atlantic Ocean,
(k) The Fisheries Director may, by proclamation, establish trip
limits for the taking of flounder from the Atlantic Ocean to
assure that the individual state quota allocated to North Carolina
in the joint Mid- Atlantic Fishery Management Council/Atlantic
States Marine Fisheries Commission Mid Atlantic Fisheries
Management — Council Atlantic — States — Marine — Fisheries
Commission Fishery Management Plan for Summer Flounder is
not exceeded.
Authorities. 113-134; 113-182: 113-221: 143B-289.4.
.0507 RECREATIONAL FISHING RESTRICTIONS
(a) Blue marlin:
(1 ) It is unlawflil to possess blue marlin less than 96 8^
inches in length from the lower jaw to the fork in the
tail.
(2) It is unlawflil to possess more than one blue marlin
per person per day.
(b) White marlin:
( 1 ) It is unlawful to possess white marlin less than 66 63
inches in length from the lower jaw to the fork in the
tail.
(2) It is unlawful to possess more than one white marlin
per person per day.
(c) Sailfish:
( 1 ) It is unlawflil to possess sailfish less than 57 inches in
length from the lower jaw to the fork in the tail.
(2) It is unlawful to possess more than one sailfish per
person per day.
(d) Cobia:
( 1 ) It is unlawflil to possess cobia less than 33 inches fork
length taken by hook-and-line.
(2) It is unlawful to possess more than two cobia per
person per day taken by hook-and-line.
(e) Dolphin:
(4-) It is unlawful to possess more than 10 dolphin per
person per day.
(3) Exemptions:
{Ac) Charter vessels with a valid National Marine
Fisheries — Service — Charter — Vessel — Coastal
Migratory' Pelagic Permit and licensed by the
y^S^ — Coast — Guard to — carr>' — &»? — ef — less
passengers for hire, may possess a maximum of
60 dolphin per day regardless of the number of
people on board.
(B^ Vessels with a valid commercial National
Marine Fisheries Service Federal Coastal
Migratory Pelagic Permit including
charterboats when fishing with three or less
persons (including captain and mate) on board
are exempt from the creel limits set out in
Subparagraph (o)(l ) of this Rule.
Authority G.S. 113-134: 113-182: 113-221: 143B-289.4.
.0515 DOLPHIN
ft is unlawful to possess more than 10 dolphin (Con'phaena
13:3
NORTH CAROUN.
mm^i^^m^^
PROPOSED RULES
hippitrus) per person per day,
(1 ) Exemptions:
(a) Charter vessels with a vaUd National Marine
Fisheries Ser\ice Charter Vessel Coastal
Migrators Pelagic Permit and licensed by the
U.S. Coast Guard to carrN six or less
passengers for hire, may possess a maximum of
60 dolphin per day regardless of the number of
people on board.
(b) Vessels with a valid commercial National
Marine Fisheries Ser\ice Federal Coastal
MigratorN' Pelagic Permit including
charterboats (when fishing with three or less
persons including captain and mate on board)
are exempt from the creel limits set out in this
Paragraph of this Rule, except jt js unlawful to
possess or land more than 4.000 pounds of
dolphin per vessel per trip.
(2) Quota. The annual (January through December)
commercial quota for dolphin landed in North
Carolina is 360.000 pounds. If 200.000 pounds of the
quota is projected to be taken, the Fisheries Director
shall, by proclamation, reduce the trip limit in
Subltem (l)(b) of this Rule to 750 pounds, if the
quota is projected to be taken the Fisheries Director
shall. b\ proclamation, close North Carolina ports to
the commercial landing of dolphin.
(3) It is unlawful to transfer dolphin from one vessel to
another.
AuthorinG.S. 113-134: 113-182: 113-221: 143B-289.5.
SUBCHAPTER 30 - LICENSES, LEASES, AND
FRANCHISES
SECTION .0300 - LICENSE APPEAL PROCEDURES
.0303 APPEAL PETITION AND OTHER EVIDENCE
(a) Under the Statutes authorizing issuance of special licenses
in cases of emergencies or hardships, the most important
criterion is the demonstration of emergency or hardship. The
Appeals Panel must and shall deny petitions which fail to
demonstrate emergency or hardship consistent with the
provisions of 15A NCAC 30 .0305 and .0306.
(b) The contents of an appeal petition are as follows:
( 1 ) Petitions that do not contain the follow ing items shall
be returned to the petitioner w ithout being processed:
(A) A completed Appeals License Application:
(B) A statement of the license(s) being requested:
(C) Where a \essel license is requested, a cop\ of
the registration/documentation information
which identities the vessel;
(D) The petitioner's notarized signature: and
(E) Where petitioners are not residents of North
Carolina, certification from the fisheries
agencN of their resident state or jurisdiction
showing, for the time period beginning July 1.
1991 to the present, all licenses held and an\
violations or convictions entered against them,
or the lack thereof.
(2) In addition, a petition shall include:
(A) A statement of emergency or hardship
consistent with the standards in this Section:
(B) A list of license suspensions and revocations,
and convictions of fisheries offenses in any
state or jurisdiction during the past three years;
(C) The reason(s) for failure to obtain the
license(s) before July I. 1994; 1994. and jn the
case of vessel endorsements to sell, between
1994 and August 15. 1997;
(D) A list of commercial fishing license(s). from
any state or jurisdiction, held b\ the petitioner
since Jul>- I. 1991, with identifying license
number and issuing agency; and
(E) Request for oral argument, if desired.
(3) A petition may be accompanied b\';
(A) Evidence demonstrating the extent to which the
petitioner relies on commercial fishing as a
li\elihood. such as tax records, sales records,
trip tickets, and similar information;
(B) Sworn affidavits b\ others verif\ing or
supporting the information in the petition;
(C) Exhibits and an) other evidence to be offered
in support of the appeal; and
(D ) A statement w ai\ ing the opportunit\ to repK' to
the Division of Marine Fisheries
recommendation.
(c) Requests for oral arguments ma\ onl> be made in the
appeal petition.
(d) Petitions, evidence, and supporting information ma\ only
be filed w ith the Division of Marine Fisheries at its offices in
Morehead City or by mailing to Post Office Box 769. Morehead
Cit>. North Carolina 28557-0769. The petition shall not be
processed until the petitioner provides an original and four
copies of the petition and supporting information.
(e) The Division of Marine Fisheries shall submit its
recommendation and an\ other relevant information on each
appeal to the Appeals Panel v\ithin 10 working da\s of the
receipt of a complete petition. On the same day the
recommendation is sent to the Appeals Panel, the Division of
Marine Fisheries shall serve a copv of its recommendation on the
petitioner bv depositing it in first class mail, hand deliver., or
facsimile delivery.
(f) Any repK to the Division of Marine Fisheries
recommendation must be filed with the Division of Marine
Fisheries within 10 days after the recommendation is served.
The petition shall not be processed until the petitioner provides
an original and four copies of the reph and supporting
information.
Auihorin- G.S. 113-134: 113-153.1: 1993, c. 5^6. s. 3;
I43B-289.4 (Regular Session 1994).
.0306 HARDSHIP LICENSES
The following criteria v\ill be applied in approv ing or denying
petitions based on hardship:
ALL
WAl^ c
M^^mj^^
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AimustJ.JMS
13:3
PROPOSED RULES
(1) A petition will be denied unless it demonstrates at
least one of the following circumstances:
(a) For each license applied for, the petitioner has
held that license or an equivalent commercial
fishing license from North Carolina or from
another state or jurisdiction in two out of the
past three years; years prior to the moratorium
applicable to that license; and petitioner can
demonstrate extenuating or extraordinary
circumstances which prevented him or her
from obtaining the North Carolina commercial
fishing license for 1993 1994; 1993-1994 or, in
the case of the vessel endorsement to sell, for
any of the years from 1994 through 1997;
(b) It can be demonstrated that petitioner did not
obtain a 1993-1994 license because petitioner
was on active military duty outside the state
and that for two out of the three years previous
to going on active military duty, petitioner held
the license being applied for;
(c) The petitioner has become 16 years of age
since June 30, 1994; has a history of
commercial fishing with their parent or
guardian; and holds a Shellfish or Crab
License;
(d) A member of the petitioner's immediate family,
who holds a current license, has died, is
incapacitated, or is retiring from the
commercial fishery; the petitioner needs the
license to continue in that fishery operation;
and the family member will surrender the
license upon approval of the petition;
(e) The petitioner js applying for a commercial
vessel license; does not have and has not
applied for a vessel endorsement to sell fish;
can demonstrate that the license is necessary to
provide nutritional subsistence for petitioner's
household which petitioner is otherwise unable
to afford; and petitioner agrees to restrict
possession of fish to recreational size and creel
limits; or
(f}(e) The petitioner can demonsfrate facts similar in
hardship to the preceding situations.
(2) Hardship and emergency licenses are issued solely to
the petitioner based upon individual demonstration of
need. A petition may be denied if the Appeals Panel
finds that the petitioner is unable to demonstrate a
substantial adverse effect on his or her livelihood in
the event the license is denied.
(3) The petition shall be denied if, the petitioner has a
history of fishing law violations which would cause
petitioner to be ineligible for a license in North
Carolina or has a history of substantial noncompliance
with federal or state laws, regulations, or rules for the
protection of marine and estuarine resources in any
state or jurisdiction.
(4) The holder of a current and valid hardship license on
June 30 of the license year has the same eligibility to
renew the license as persons not subject to the
moratorium.
Authority G.S. 113-134; 113-153.1;
3;143B-289.4 (Regular Session 1994).
1993. c. 576, s.
SUBCHAPTER 3P - HEARING PROCEDURES
SECTION .0100 - HEARING PROCEDURES
.0103 PETITIONS FOR REGULATORY ACTIVITY
(a) Any person(s) desiring to request the adoption,
amendment, or repeal of a rule may make such request in a
petition filed pursuant to G.S. 150B 20, addressed to the Marine
Fisheries Commission, and mailed to the Division of Marine
Fisheries. Stieh — petitions — shaH — contain — the — following
information:
(4^ A draft of the proposed rule or a summary of its
intent.
(3) Reasons for adoption of the proposed rule(s) and
effect on existing rules and practices.
(^ Name and address of the petitioner(s).
(b^ Petitions will be placed on the agenda for the next
regularly scheduled Marine Fisheries Commission meeting if
received at least four weeks prior to the meeting. The Fisheries
Director will prepare recommended responses to petitions for the
Commission's consideration. — Petitions will be considered in
accordance with the requirements of G.S. 150B 20.
Authority' G.S. 113-134; 143B-289.4; 150B-20.
SECTION .0200 - DECLARATORY RULINGS
.0201 DECLARATORY RULINGS: GENERALLY
At the request of any person aggrieved, as defined in G.S.
150B-2(6), the Marine Fisheries Commission may issue a
declaratory ruling as provided in G.S. 150B-4.
Authorit\'G.S 113-134; 1 1 3-182; 1438-289.53; 1508-4.
.0202 PROCEDURE FOR REQUESTING
DECLARATORY RULINGS
(a) All requests for a declaratory ruling shall be filed jn
writing with the Director of the Division of Marine Fisheries,
Department of Environment and Natural Resources (DENR), PO
Box 769, Morehead City, North Carolina 28557. All requests
shall include the following: the aggrieved person's name and
address; the rule, statute or order upon which a ruling is desired;
a concise statement as to whether the request is for a ruling on
the validity of a rule or on the applicability of a rule, order or
statute to a given factual situation; arguments or data which
demonstrate that the petitioner is aggrieved by the rule or statute
or its potential application to him; a statement of the
consequences of a failure to issue a declaratory ruling in favor
of the petitioner; and a statement of whether an oral argument is
desired, and, if so, the reasons for requesting such an oral
argument.
(b) A request for a ruling on the applicability of a rule, order.
m
NORTH CAROLINA REGIS
mmmi^^mm
99,
m
PROPOSED RULES
or statute must include an undisputed description of the factual
situation on which the ruling is to be based. A request for a
ruling on the validity of a Commission rule must state the
aggrieved person's reasons for questioning the validit\ ot" the
rule. A person may ask for both types of rulings in a single
request. A request for a ruling must include or be accompanied
by:
(1) a statement of the undisputed facts proposed for
adoption by the Commission; and
(2) a draft of the proposed ruling.
(c) Before deciding the merits of the request, the Commission
may:
( 1) request additional written submissions from
petitioner! s):
(2) request a written response from the Division staff or
any other person; or
(3) hear oral argument from the petitioner(s) and Division
staff.
(d) Unless the Division waives the opportunity to be heard, it
shall be a party to any request for declaratory ruling. Upon
written request, the requesting party and the Division ma\' each
be allowed to present oral arguments to the Commission at a
regularly scheduled meeting. Neither part\' may offer testimony
or conduct cross-examination before the Commission. The
declaratory ruling shall be determined on the basis of the
statement of undisputed facts submitted by the parties.
(e) Whenever the Commission believes "for good cause" that
the issuance of a declaratory ruling is undesirable, the
Commission may refuse to issue such ruling. The Commission
shall notify in writing the person requesting the ruling, stating
the reasons for the refusal to issue a ruling on the request.
(f) For purposes of Paragraph (e) of this Rule, the
Commission shall ordinarily refuse to issue a ruling on a request
for declaratory ruling on finding that:
( 1 ) the petitioner(s) and the Division cannot agree on a
set of undisputed facts sufficient to support a
meaningful ruling;
(2) there has been a similar determination in a previous
contested case or declaratory ruling;
(3) the matter is the subject of a pending contested case
hearing or litigation in any North Carolina or federal
court; or
(4) no genuine controversy e.xists as to the application of
a statute or rule to the undisputed factual situation
presented.
(g) The Commission shall keep a record of each declaratory
ruling, which shall include at a minimum the follow ing items:
(1) the request for a ruling;
any written submissions by the parties;
the statement of undisputed facts on which the ruling
was based;
any transcripts of oral proceedings, or. in the absence
of a transcript, a summary of all arguments;
(5) any other matter considered by the Commission in
making the decision; and
(6) the declaratory ruling, or the decision to refuse to
issue a declaratory ruling, together uith the reasons
therefore.
(h) A declaratory ruling is binding on the Commission and the
person requesting it unless it is altered or set aside by the court.
The Commission may not retroactively change a declaratory
ruling, but nothing in this Section prevents the Commission from
prospectively changing a ruling.
(jj Unless the requesting party consents to the delay, failure
of the Commission to issue a ruling on the merits or deny the
request within 60 days of receipt of the request for such ruling
shall constitute a denial of the request as well as a denial of the
merits of the request and shall be subject to judicial review.
Authority G.S. 113-134: 113-182: 143B-289.53: 150B-4.
.0203 DEFINITION
For purposes of Rule .0202 of this Subchapter, a declaratory
ruling shall be deemed to be "in effect" until the statute or rule
interpreted by the declaratory ruling is amended, altered or
repealed; until the Commission changes the declaratory' ruling
prospectively for good reasons; or until any court sets aside the
ruling in litigation between the Commission or Department of
Environment and Natural Resources and the party requesting the
rule; or until any court of the Appellate Division of the General
Court of Justice shall construe the statute or rule which is the
subject of tlie declaratory ruling in a manner plainly
irreconcilable with the declaratory ruling.
Authority G.S. 113-134: 113-182: 143B-289.53: 150B-4.
SECTION .0300 - PETITIONS FOR RULEMAKING
.0301 FORM AND CONTENTS OF PETITION
(a) Any person wishing to request the adoption, amendment.
or repeal of a rule of thie Marine Fisheries Commission
(hereinafter referred to as tlie Commission) shall make his
request in a written petition addressed to tlie Chairman of the
Marine Fisheries Commission and submitted to the Commission
staff at:
Marine Fisheries Commission
Division of Marine Fisheries
PO Box 769
Morehead Citv. North Carolina 28557.
(b) The petition shall contain the following information:
ti)
t6j
ID
(8j
the text of the proposed rule(s);
the statutory authority for the agency to promulgate
the rule(s);
a statement of tlie reasons for adoption of the
proposed rule(s);
a statement of the effect on existing rules;
copies of any documents and data supporting the
proposed rule(s);
a statement of tlie effect of frie proposed rule(s) on
existing practices in the area involved, including an
estimate of cost factors for persons affected by the
proposed rule(s);
a description of those most likely to be affected by the
proposed rule(s); and
the name(s) and address(es) of the petitioner(s).
(c) When petitions and supporting documents and data exceed
312
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m^smsmiM
August 3. 1998
13:3
PROPOSED RULES
10 pages in length. 15 copies of the entire petition and any
attachments shall be submitted.
(d) Petitions failing to contain the required information shall
be returned by the Marine Fisheries Commission Chairman.
the petition of the decision in writing; or
(2) deny the petition in writing, stating the reason or
reasons for the denial, and send the written denial to
the person(s) who submitted the petition.
Authority G.S. 113-134: 113-182;
143B-289.51; 143B-289.52; 150B-20.
.0302
113-182.1: 113-201:
REVIEW BY A COMMITTEE OF THE
COMMISSION
(a) The Marine Fisheries Commission Chairman may refer
duly submitted petitions to the appropriate standing advisop>'
committee(s) or other advisory committee(s) of the Commission
for review and recommended action. Copies of petitions for
rulemaking shall be distributed to the Commission members
when referred to a committee of the Commission.
(b) The Chairman of the Committee assigned to review a
submitted petition for rulemaking shall announce the date of a
meeting to consider the petition within 1 0 days of the assignment
of the petition.
(c) At least 15 days before the Committee meeting, the
Committee Chairman shall send notice of the Committee
meeting to the petitioner, members of the Commission, and
persons who have requested notice of petitions for rulemaking.
(d) The petitioner shall be afforded the opportunity to present
the petition for rulemaking to the Committee. The Director,
through staff, may make a presentation to the Committee.
(e) Interested persons must request the opportunirs^ to make
a presentation to the Committee(s) through the Committee(s)
chair(s). The request shall:
state the interest of the person.
the person's position on the petition for rulemaking.
and
(3) be accompanied by supporting materials.
The Chairman of the Committee will determine whether
additional interested persons make oral presentations before the
Committee.
(f) The Chairman of the Committee will determine whether
a public meeting should be conducted by the Committee before
it makes a recommendation on the petition for rulemaking.
(g) During the Committee's review, members of the
Commission, other than Committee members, who are present
may participate as a member of the Committee in discussions of
the petition but may not vote on the recommended action on the
petition.
Authority G.S. 113-134: 113-182: 143B-289.52: 150B-20.
.0303 PRESENTATION TO THE COMMISSION
(a) Petitions for rulemaking, when deemed complete by the
Marine Fisheries Commission Chairman, shall be presented to
the Marine Fisheries Commission for its consideration and
determination at the next regularly scheduled meeting of the
Commission.
(b) Within 120 days following submission of the petition
requesting rulemaking, the Marine Fisheries Commission shall:
(1) initiate rulemaking proceedings in accordance with
G.S. 1 50B-20 and notifS' the person(s) who submitted
Authority G.S. 113-134: 113-182: 143B-289.51: 150B-20.
.0304 RECOURSE TO DENIAL OF THE PETITION
If the Marine Fisheries Commission denies the petition for
rulemaking, the petitioner(s) may seek judicial review of the
denial under G.S. 150B. Article 4 of Chapter 150B of the
General Statutes.
Authority G.S 113-134: 113-182: 1433-289.51: 150B-20.
TITLE 21 - OCCUPATIONAL LICENSING
BOARDS
CHAPTER 11 - NORTH CAROLINA BOARD
OF EMPLOYEE ASSISTANCE PROFESSIONALS
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Board of Employee Assistance
Professionals intends to adopt the rules cited as 21 NCAC 11
.0101-. 0112. Notice of Rule-making Proceedings was published
in the Register on .April 1. 1998.
Proposed Effective Date: .April 1. 1999
Instructions on How to Demand a Public Hearing. A demand
for public hearing must be requested in writing within 15 days
of this notice and addressed to Charlotte F. Hall, Division of
MH/DD/S.4S, 325 N. Salisbuiy Street, Albemarle Building
Raleigh. NC 27603-5906.
Reason for Proposed Action: 1995 Session, Chapter 720.
House Bill An Act to Create the North Carolina Board of
Employee .Assistance Professionals and to Provide for the
Licensing of Employee Assistance Professionals.
Comment Procedures: Written comments should be submitted
to Charlotte F. Hall, Rule-making Coordinator Division of
Mental Health Developmental Disabilities and Substance Abuse
Services, 325 N. Salisbuiy Street. .Albemarle Building. Raleigh,
NC 27603-5906.
Fiscal Note: These Rules, 21 NCAC 11 .0101-.0112 affect the
expenditure or distribution of State and local government funds.
These Rules do not have a substantial economic impact of at
least five million dollars (55,000,000) in a 12-month period.
SECTION .0100 - ADMINISTRATION
.0101 SCOPE
(a) This Subchapter sets forth rules for the North Carolina
Board of Employee Assistance Professionals.
ma^mmwrn^^^^
PROPOSED RULES
(b) The mailinK address of the Board is POBox 10344,
Raleigh, North Carolina 27605-0344.
Authority G.S. 90-509.
.0102 COMPOSITION OF BOARD MEMBERS
(a) Board members shall be appointed m accordance with
G.S. 90-501 and may serve successive annual terms as either
Chair or Secretary'.
(b) A Chair and a Secretary shall be elected at the first
meeting of each calendar year.
requirements for licensure.
(b) The Board shall review each completed application for
renewal of licensure and issue a renewal license to an applicant
who meets the requirements for renewal.
(c) Upon application for an initial or renewal license, the
Board shall ensure that each applicant agrees, m writing, to
comply with the Employee Assistance Certification Commission
Code of Professional Conduct and the Employee Assistance
Professional Association Code of Ethics.
Authority' G.S. 90-505.
Authority G.S. 90-501: 90-511.
.0103 BOARD MEETINGS
(a) Board meetings shall be held quarterly.
(b) The Board Chair may call special meetings as necessary
to conduct business.
(c) Board meetings shall be noticed in accordance with the
Open Meetings Law set forth in G.S. 143-318.12 Public Notice
of Official Meetings.
Authority G.S 90-501 143-318.12.
.0104 LICENSE APPLICATION
(a) The Board shall prescribe the forms to be used for
submitting an application for initial or renewal licensure.
(b) An application shall not be considered complete unless it
is submitted using the prescribed form and the unless the Board
has received the application fee.
(c) Specific information contained in both the initial and
renewal applications shall be deemed confidential as prescribed
by the Board.
(d) Both an initial and renewal license are valid for a period
of three years.
Authority- G.S 90-503.
.0105 TRANSCRIPTS AND OTHER SUPPORTING
DOCUMENTS
(a) Official educational transcripts submitted to support an
application for licensure shall be received bv the Board directly
from the educational institution.
(b) Transcript course titles which are ambiguous and do not
conve\ the content of courses shall require an applicant to
provide other documents and information to support claimed
educational credentials. Such documents may be official catalog
descriptions, course syllabi, reading lists, term papers, theses and
written research.
(c) A current copy of an applicant's certification by the
Employee Assistance Certification Commission, as an employee
assistance professional, shall be submitted with the application.
Author it}' G.S. 90-503.
.0106 REVIEW OF APPLICATIONS
(a) The Board shall review each completed initial application
for licensure and issue a license to an applicant who meets the
.0107 NOTICE OF DENIAL OF INITIAL OR
RENEWAL APPLICATION
(a) The Board shall notify each applicant, in writing, of the
reason for which an application for initial licensure
or renewal of licensure was denied.
(b) The applicant shall have the right to file a petition for a
contested case hearing in accordance with G.S. 150B. Article 3.
Authority G.S 90-505: 150B. Article 3.
.0108 DISCIPLINARY ACTION/HEARING
(a) The Board shall impose reasonable discipline for conduct
it finds in violation of G.S. 90-509. only after conducting a
hearing in accordance with G.S. 150B. Article 3.
(b) Board disciplinary action may include:
(1 ) admonishment: a serious warning for mild
12}
misconduct;
reprimand:
a public rebuke and sanction for
OJ
(4)
(c)
misconduct, which may require follow-up actions by
the licensee;
suspension: withdrawal of the privilege of using the
title of Licensed Employee Assistance Professional
during the time frame specified by the Board; and
revocation: permanent withdrawal of the privilege of
using the title of Licensed Employee Assistance
Professional. A Licensed Employee Assistance
Professional whose license is revoked by die Board
must surrender the license certificate to the Board.
Any disciplinary action may be suspended for a
reasonable period not to exceed one year upon such terms and
conditions as thie Board deems appropriate, if in the sole
discretion of the Board, it is in the best public interest to do so.
(d) The Board deems disciplinan, action to be those terms
stated.
(e) Notification of final disciplinarN' action shall be made to
the Employee Assistance Professionals Association and the
Employee Assistance Certification Commission, within 30 days
of the final action taken by the Board.
.Authority G.S. 90-506: 150B. Article 3.
.0109 CURRICULA AND MINIMUM STANDARDS
FOR TRAINING
m
«itt^HM«ii6
am^m
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m
PROPOSED RULES
The Board shall adopt and incorporate by reference the
minimum continuing education requirements of the Employee
Assistance Certification Commission. This referenced material
shall include any subsequent editions and amendments. It may
be obtained from the EACC/Certification Department/EAPA.
2101 Wilson Blvd., Suite 500, Arlington, Virginia 22201-3022.
Cost of the documents vary.
Authoring G.S. 90-500.
Authorit}' G.S. 90-500
.0111 FEES
(a) Upon submission of an application for initial licensure, a
fee of one hundred dollars ($100.00) shall be paid to the Board.
(b) A fee of seyenty-five dollars (S75.00) shall be paid to the
Board for renewal of license.
(c) Neither an initial or a renewal application shall be
considered complete until the required fee is paid.
.0110 ETHICAL STANDARDS
(a) The Board shall adopt and incorporate by reference the
Code of Professional Conduct for Certified Employee
Assistance Professionals, Fourth Edition. This referenced
material shall include any editions and amendments promulgated
by the Employee Assistance Certification Commission.
(b) The Board shall also adopt and incorporates by reference
the Employee Assistance Professionals Association Code of
Ethics. This referenced material shall include any subsequent
editions and amendments. It may be obtained at no cost from the
EACC/Certification Department/EAPA, 2101 Wilson Blvd..
Suite 500, Arlington. Virginia 22201-3022.
Authority G.S. 90-503.
.0112 PENALTIES
In accordance with G.S. 90-506 and 90-509, when requested,
the Board shall review its assessment of a civil penalty against
an individual jn a contested case hearing as set forth in G.S.
1 50B, Articles.
Authority G.S. 90-506; 90-509; 150B. Article 3.
13:3
NORTH CAROLINA REGISTER
muk
1998
m
TEMPOR.4R Y RULES
The CoJifier of Rules has entered the following temporaiy ritle(s) in the North Carolina Administrative Code. Pursuant to G.S.
150B-2I. 1(e). publication of a temporary- rule in the North Carolina Register sen'es as a notice of rule-making proceedings
unless this notice has been previously published by the agency.
TITLE 10 - DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Rule-making Agency: DHHS - Division of Medical Assistance
Rule Citation: 10 NC.4C 26H .0304
Effective Date: August ^ 1998
Findings Reviewed by Julian Mann: Approved
Authority for the rule-making: G.S. 108A-25fb): I08A-54:
108.4-55: 42 C.F.R. Part 447. Subpart C
Reason for Proposed Action: The Division of Facility Services
has cited many ICF-MR facilities as needing fire sprinkler
systems. In addition, providers recognize the need for
installation of said systei7is.
Comment Procedures: Written comments concerning this rule-
making action must be submitted to Portia If. Rochelle. Rule-
Making Coordinator. Division of Medical .Assistance. 1985
Umstead Drive. Raleigh. NC 2 "603.
CHAPTER 26 - MEDICAL ASSISTANCE
SUBCHAPTER 26H - REIMBURSEMENT PLANS
SECTION .0300 - IFC-MR PROSPECTIVE RATE
PLAN
.0304 RATE SETTING METHOD FOR NON-STATE
FACILITIES
(a) A prospective rate shall be determined annuail\ for each
non-state facility to be effective for dates of service for a 12
month rate period beginning each JuK I . The prospective rate
shall be paid to the provider for every Medicaid eligible day
during the applicable rate year. The prospective rate ma\ be
determined after the effective date and paid retroactively to that
date. The prospective rate ma\ be changed due to a rate appeal
under Rule .0308 of this State Plan or facility reclassification
under Paragraph (b) of this Rule. Each non-state facility, except
those facilities where Paragraph (v) of this Rule applies, shall be
classified into one of the following groups:
(1) Group 1- Facilities with 32 beds or less.
(2) Group 2- Facilities with more than 32 beds.
(3) Group 3- Facilities with medically fragile clients. For
rate reimbursement purposes under this Rule
medically fragile clients are defined as an\ individual
with complex medical problems who have chronic
debilitating diseases or conditions of one or more
physiological or organ systems which generally make
them dependent upon 24-hour a day
medical nursing'liealth supervision or intervention.
(4) Facilities in group 1 or 2 in Subparagraph (a)( 1 ) or (2)
of this Rule shall be further classified in accordance
to the level of disability of the facility's clients, as
measured b\ the Developmental Disabilities Profile
(DDP) assessment instrument which along with the
scoring instrument are hereby incorporated by
reference, including subsequent amendments and
editions. This material is available for inspection and
copies ma\ be obtained from the Div ision of Medical
Assistance. 1985 Umstead Dri\e. Raleigh. North
Carolina 27603 at a cost of rwentv' cents ($.20) per
page. A summan. of the levels of disability is shown
in the following chart:
FACILITY DDP SCORE
Level
Low
Hieh
1
2
3
4
5
200.00
300.00
125.00
199.99
100.00
124.99
75.00
99.99
50.00
74.99
(b) Facilities shall be reclassified into appropriate groups as
defined in Paragraph (a) of this Rule.
(1) When a facilits is reclassified, the rate shall be
adjusted retroacti\el\ back to the date of the event
that caused the reclassification. This adjustment shall
give full consideration to any reclassification based on
the chanae in facts or circumstances during the \ean
(2)
0\erpa\Tnents related to this retroacti\e rate
adjustment shall be repaid to the Medicaid program.
Underpayments related to this retroactive rate
adjustment shall be paid to the provider.
The pro\ ider shall be given the opportunity to appeal
the merits of the reclassification of any facility, prior
to an\' decision b\ the Di\ision of Medical
316
NORTH CAROLINA REGISTER
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Assistance.
(3) The provider shall be notified in writing 30 days
before the implementation of new rates resulting from
the reclassification of any facility.
(4) The providers and the Division of Medical Assistance
shall make every reasonable effort to ensure that each
facility is properly classified for rate setting purposes.
(5) A provider shall file any request for facility
reclassification in writing with the Division of
Medical Assistance no later than 60 days subsequent
to the proposed reclassification effective date.
(6) For facilities certified prior to July 1, 1993, the
facility DDP score calculated for fiscal year 1993
shall be used to establish proper classification at July
1, 1995.
(7) For facilities certified after June 30, 1993, the most
recent facility DDP score shall be used to establish
proper classification.
(8) A facility reclassification review shall use the most
current facility' DDP score.
(9) A facility's DDP score shall be subject to independent
validation by the Division of Medical Assistance.
(10) A new facility that has not had a DDP survey
conducted on its clients shall be categorized as a level
2 facility for rate setting purposes, pending
completion of the DDP survey. Upon completion of
the DDP survey, the facility shall be subject to
reclassification and rates shall be adjusted
retroactively back to the date of certification.
Overpayments related to this retroactive adjustment
shall be paid to the Medicaid program.
Underpayments related to this retroactive rate
adjustment shall be paid to the provider
(c) Facility rates under this Rule shall be established at July
1, 1995, under the following:
(1) For facilities certified prior to July 1, 1993. rates shall
be derived from the 1 993 cost reports.
(2) For facilities certified during fiscal year 1993-1994,
the fiscal year 1994 facility specific cost report shall
be used to derive rates.
(3) For facilities certified during fiscal year 1994-1995,
the fiscal year 1995 facility specific cost report shall
be used to derive rates.
(A) Rates for these facilities shall not be adjusted,
except for the impact of inflation under
Paragraph (k) of this Rule, until the fiscal year
1995 cost report has been properly reviewed.
Rates for these facilities shall be adjusted
retroactively back to July 1, 1995, once the
fiscal year 1995 facility specific cost report has
been properly reviewed. Overpayments related
to this retroactive rate adjustment shall be
repaid to the Medicaid program.
Underpayments related to this retroactive rate
adjustment shall be paid to the provider.
(4) Facilities with rates established during a rate appeal
proceeding with the Division of Medical Assistance
during fiscal years 1994 or 1995 shall not have their
rates established in accordance with Subparagraph
(c)(1), (c)(2), or (c)(3) of this Rule.
(A) The rates for these facilities shall remain at the
level approved in the rate appeal proceeding
adjusted only for inflation, as reflected in
Paragraph (k) of this Rule.
(d) For facilities certified after June 30, 1993, rates developed
from filed cost reports for fiscal years subsequent to 1 993 may
be retroactively adjusted if there is found to exist more than a
two percent difference between the filed per diem cost and either
the desk audited or field audited per diem cost for the same
reporting period. Rates developed from desk audited cost
reports may be retroactively adjusted if there is found to exist
more than a two percent difference between the desk audited per
diem cost and the field audited per diem cost for the same
reporting period. The rate adjustment may be made after written
notification to the provider 30 days prior to implementation of
the rate adjustment.
(e) Each prospective rate developed in accordance with
Subparagraph (c)(1). (c)(2), or (c)(3) of this Rule consists of the
sum of two components as follows:
( 1 ) Indirect care rate.
(2) Direct care rate.
(f) A uniform industry wide indirect care rate shall be
established for each facility category shown under Subparagraph
(a)(1), (a)(2), or (a)(3) of this Rule.
( 1 ) The indirect rate for group 1 facilities is based on the
fiftieth percentile of the following costs incurred by
all group 1 facilities with six beds or less, except
those related by common ownership or control to
more than 40 said facilities:
(A) The sum of the cost of property ownership and
use, administrative and general, and operation
and maintenance of plant, as determined by the
Myers and Stauffer study performed on the
1 993 base year cost reports.
(2) The indirect rate for group 2 facilities is based on the
fiftieth percentile of the costs noted in Part (f)(1)(A)
of this Rule incurred by the group 2 facilities, as
determined by the Myers and Stauffer study
performed on the 1 993 base year cost reports.
(3) The indirect rate for group 3 facilities is based on the
fiftieth percentile of the costs noted in Part (f)(1)(A)
of this Rule incurred by the group 3 facilities, as
determined by the Myers and Stauffer study
performed on the 1 993 base year cost reports.
(4) The indirect rates established under Subparagraphs
(f)(1), (f)(2), and (f)(3) of this Rule shall be reduced
as determined based on industry cost analysis by an
amount not to exceed four percent to account for
expected operating efficiencies.
(g) The direct care rate for facilities certified prior to July 1,
1993, shall be based on the Myers and Stauffer study performed
on the 1993 base year cost reports.
(1) The direct care rate for all facilities certified during
fiscal years subsequent to fiscal year 1 993 is based on
the first facility specific cost report filed after
certification. Based on said cost report, the direct care
13:3
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317
TEMPO R.4 RYR UL ES
rate is equal to the sum of all allowable costs reflected
in the ICF-MR cost report cost centers, as included in
the ICF-MR cost report format effecti\e JuK 1. 1993.
except for the follow ing indirect cost centers:
(A) Propert) Ownership and Use
(B) Operation and Maintenance of Plant and
Housekeeping-Non-Labor
(C) Administrative and General
(2) The direct care rate shall be limited to the lesser of the
actual amount incurred in the base \ear or the cost
limit deri\ed from the fiftieth percentile of direct care
costs incurred b\ the related facilir\ group in the fiscal
Near 1993 base >ear. based on the Msers and Stauffer
stud> .
(3) The fiftieth percentile cost limit shall be reduced b\
one percent each year, for the four year period
beginning JuK' 1. 1996. in order to account for
expected operating efficiencies, as determined based
on industn, cost anaK sis.
(4) The fiftieth percentile cost limit shall be increased
each \ear b\ price le\el changes calculated in
accordance with Paragraph (k) of this Rule.
(h) The indirect rate shall not be subject to cost settlement.
(1) Costs abo\e the indirect rate shall not be paid to the
pro\ider.
(2) Costs sa\ings below the indirect rate shall not be
recouped from the pro\ ider.
(i) The direct care rate shall be subject to cost settlement,
based on the cost report, subject to audit, filed with the Di\ ision
of Medical .Assistance.
( 1 ) Costs abo\e the direct rate shall not be paid to the
pro\ider.
(2) Cost sa\ings below the direct rate shall be recouped
from the provider.
('}) Facilities with rates established during a rate appeal
proceeding with the Division of Medical .Assistance during fiscal
\ears 1994 or 1995 ma> choose to cost settle under the
pro\isions of Paragraphs (h) and (i) of this Rule, or under the
follow ing procedure:
( 1 ) If. during a cost reporting period, total allowable costs
are less than total prospecti\e pa\ments. then a
pro\iderma> retain one-half of said difference, up to
an amount of fi\e dollars (S5.00) per patient da\. The
balance of unexpended pasments shall be refunded to
the Di\ ision of Medical Assistance. Costs in excess
of a facility's total prospecti\e pa>ment rate are not
reimbursable.
(2) The facilities subject to the Paragraph shall make the
election on cost settlement methodolog\ on or before
the tiling of the annual cost report with the Di\ ision
of Medical Assistance.
(3) An election to follow the cost settlement procedures
of Paragraphs (h) and (i) of this Rule shall be
irre\ocable.
(4) Rates established for these facilities during future rate
appeal proceedings shall be subject to the cost
settlement procedures of Paragraphs (h) and (i) of this
Rule.
(k) To compute each facility's current prospective rate, the
direct and indirect rates established by Paragraphs (f) and (g) of
this Rule shall be adjusted for price level changes since the base
Near. No inflation factor for an_\ pro\ider shall exceed the
maximum amount permitted for that provider by federal or state
law and regulations.
(1) Price level adjustment factors are computed using
aggregate costs in the follow ing manners:
(A) Costs shall be separated into three groups:
(i) Labor,
(ii) Non-labor,
(ill) Fixed.
(B) The relative weight of each cost group is
calculated to the second decimal point by
di\ iding the total costs of each group (labor,
nonlabor. and fixed) by the total cost of the
three categories.
(C) Price level adjustment factors for each cost
group shall be established as follows:
(i) Labor. The percentage change for labor
costs is based on the projected average
hourK w age of North Carolina service
workers. Salaries for all personnel shall
be limited to levels of comparable
positions in state owned facilities or
le\els specified b> the Division of
Medical Assistance.
(ii) Nonlabor. The percentage change for
nonlabor costs is based on the projected
annual change in the implicit price
deflator for the Gross National Product
as provided b\ the North Carolina
Office of State Budget and
Management.
(iii) Fixed. No price le\el adjustment shall
be made for this categor\.
(D) The weights computed in Part (k)(l )(B) of this
Rule shall be multiplied b\ the rates computed
in Part (k)(l)(C) of this Rule. These weighted
rates shall be added to obtain the composite
inflation rate to be applied to both the direct
and indirect rates.
(1) Effective JuK 1. 1995. an\ rate reductions resulting from
this State Plan shall be implemented based on the following
deferral methodolog\ :
( 1 ) Rates shall be reduced for the excess of current rates
o\ er base \ ear costs plus inflation.
(2) Rates shall be reduced a maximum of 50 percent of
the fiscal 1996 inflation rate for the excess of actual
costs o\er applicable cost limits. This reduction shall
result in the facility receiving at a minimum 50
percent of the 1996 inflation rate. An\ excess
reduction shall be carried forward to future sears.
(3) Total reduction in future years related to the excess
reduction carried fonsard fi"om Subparagraph (l)(2) of
this Rule, shall not exceed the annual rate of inflation.
This reduction shall result in the facility recei\ ing at
a minimum the rate established in Paragraph (1)(2) of
318
WRTH CAROLINA REGISTER
Alls list 3, 1998
13:3
TEMPORAR Y R ULES
this Rule. Any excess reduction shall be carried
forward to future years, until the established rate
equals that generated by Paragraphs (f), (g), and (k) of
this Rule.
(4) Rates calculated based on Subparagraphs (1)(2) and
(3) of this Rule shall be cost settled based on the
provisions of Subparagraph G)(l) of this Rule until
the fiscal year that the facility receives full price level
increase under Paragraph (k) of this Rule.
(A) A provider may make an irrevocable election to
cost settle under the provisions of Paragraphs
(h) and (i) of this Rule during the deferral
period.
(B) Once the rates calculated based on
Subparagraphs (1X2) and (3) of this Rule reach
the fiscal year that the facility receives the full
price level increase under Paragraph (k) of this
Rule, then said fiscal year's rates shall be cost
settled based on Paragraphs (h) and (i) of this
Rule.
(C) Chain providers are allowed to file combined
cost reports, for cost settlement purposes, for
facilities that use the same cost settlement
methodology and have the same uniform rate.
(D) A provider may request from the Division of
Medical Assistance permission to continue cost
settlement under Subparagraph {j)(l) of this
Rule after the deferral period expires. Said
request shall be made each year, 30 days prior
to the cost report due date.
(m) The initial rate for facilities that have been awarded a
Certificate of Need is established at the lower of the fair and
reasonable costs in the provider's budget, as determined by the
Division of Medical Assistance, or the projected costs in the
provider's Certificate of Need application, adjusted from the
projected opening date in the Certificate of Need application to
the current rate period in which the facility is certified based on
the price level change methodology set forth in Paragraph (k) of
this Rule, or the rate currently paid to the owning provider, if the
provider currently has an approved chain rate for facilities in the
related facility category. The rate may be rebased to the actual
cost incurred in the first full year of normal operations in the
year an audit of the first year of normal operation is completed.
(1) In the event of a change in ownership, the new owner
receives no more than the rate of payment assigned to
the previous owner.
(2) Except in cases wherein the provider has failed to file
supporting information as requested by the Division
of Medical Assistance, initial rates shall be granted to
new enrolled facilities no later than 60 days from the
provider's filing of properly prepared budgets and
supporting information.
(3) The initial rate for a new facility shall be applicable to
all dates of service commencing with the date the
facility is certified by the Medicaid Program.
(4) The initial rate for a new facility shall not be entered
into the Medicaid payment system until the facility is
properly enrolled in the Medicaid program and a
Medicaid identification number has been assigned to
the facility by the Division of Medical Assistance,
(n) A provider with more than one facility may be allowed to
recover costs through a combined uniform rate for all facilities.
(1) Combined uniform rates for chain providers shall be
approved upon written request ft-om the provider and
after review by the Division of Medical Assistance.
(2) In determining a combined uniform rate for a
particular facility group, the weighted average of each
facility's rate, calculated in accordance to all other
provisions of this Rule, shall be used.
(3) A chain provider with facility(s) that fall under
Paragraphs (h) and (i) of this Rule and with facility(s)
that fall under Subparagraph (1)(4) of this Rule may
elect to include the facilities in a combined cost report
and elect to cost settle under either Paragraphs (h) and
(i) or Subparagraph (1)(4) of this Rule. The cost
settlement election shall be made each year, 30 days
prior to the cost report due date.
(o) Each out-of-state provider shall be reimbursed at the
lower of the applicable North Carolina rate, as established by
this plan for in-state facilities, or the provider's per diem rate as
established by the state in which the provider is located. An out-
of-state provider is defined as a provider that is enrolled in the
Medicaid program of another state and provides ICF-MR
services to a North Carolina Medicaid client in a facility located
in the state of enrollment. Rates for out-of-state providers are
not subject to cost settlement.
(p) Under no circumstances shall the Medicaid per diem rate
exceed the private pay rate of a facility.
(q) Should the Division of Medical Assistance be unable to
establish a rate for a facility, based on this Rule and the
applicable facts known, the Division of Medical Assistance may
approve an interim rate.
(1) The interim rate shall not exceed the rate cap
established under this Rule for the applicable facility
group.
(2) The interim rate shall be replaced by a permanent rate,
effective retroactive to the commencement of the
interim rate, by the Division of Medical Assistance,
upon the determination of said rate based on this Rule
and the applicable facts.
(3) The provider shall repay to the Division of Medical
Assistance any overpayment resulting from the
interim rate exceeding the subsequent permanent rate.
(r) In addition to the prospective per diem rate developed
under this Rule, effective July 1, 1992, an interim payment add
on shall be applied to the total rate to cover the estimated cost
required under Title 29, Part 1910. Subpart 2, Rule 1910.1030
of the Code of Federal Regulations. The interim rate shall be
subject to final settlement reconciliation with reasonable cost to
meet the requirements of Rule 1910.1030. The final settlement
reconciliation shall be effectuated during the annual cost report
settlement process. An interim rate add on to the prospective
rate shall be allowed, subject to final settlement reconciliation,
in subsequent rate periods until cost history is available to
include the cost of meeting the requirements of Rule 1910.1030
in the prospective rate. This interim add on shall be removed.
m
M
mummmm^^mmA
tt
TEMPOHARY RULES
upon 10 days written notice to providers, should it be determined
b\ appropriate authorities that the requirements under Title 29.
Part 1910. Subpart 2. Rule 1910.1030 of the Code of Federal
Regulations do not appK to ICF-MR facilities.
(s) All rates, except those noted otherwise in this Rule.
appro\ed under this Rule are considered to be permanent.
(t) in the event that the rate for a facility cannot be de\eloped
so that it shall be effective on the first da\ of the rate period, due
to the provider not submitting the required reports b\ the due
date, the average rate for facilities in the same facility group, or
the facility's current rate, whichever is lower, shall be in effect
until such time as the Division of Medical Assistance can
develop a nev\ rate.
(u) When the Div ision of Medical Assistance develops a ne\s
rate for a facilit\ for which a rate was paid in accordance with
Paragraph (t) of this Rule, the rate developed shall be effective
on the first dav of the second month following the receipt b\ the
Division of Medical Assistance of the required reports. The
Division of Medical Assistance may, upon its own motion or
upon application and just cause shown bv' the provider, within 60
davs subsequent to submission of the delinquent report, make the
rate retroactive to the beginning of the rate period in question.
Anv- o\erpa\ment to the provider resulting fi"om this temporary-
rate being greater than the final approved prospective rate for the
facility shall be repaid to the Medicaid Program.
(v) ICF-MR facilities meeting the requirements of the North
Carolina Di\ ision of Facility Services as a facility affiliated with
one or more of the four medical schools in the state and
pro\ iding ser\ ices on a statewide basis to children w ith various
de\elopmental disabilities who are in need of long-term high
acuity nursing care, dependent upon high technology machines
(i.e. ventilators and other supporti\e breathing apparatus)
monitors, and feeding techniques shall have a prospective
payment rate that approximates cost of care. The payment rate
may be reviewed periodically, no more than quarterly, to assure
proper payment. A cost settlement at the completion of the fiscal
period year end is required. Payments in excess of cost are to be
returned to the Division of Medical Assistance.
(w ) A special payment in addition to the prospecti\e rate shall
be made in the year that any provider changes fi"om the cash
basis to the accrual basis of accounting for vacation lea\e costs.
TTie amount of this payment shall be determined in accordance
with Title .Will allowable cost principles and shall equal the
Medicaid share of the vacation accrual that is charged in the year
of the change including the cost of vacation leave earned for that
year and all pre\ious years less \acation lea\e used or expended
over the same time period and v acation lea\e accrued prior to the
date of certification. The payment shall be made as a lump sum
payment that represents the total amount due for the entire fiscal
year. An interim payment may be made based on an estimate of
the cost of the vacation accrual. The payment shall be adjusted
to actual cost after audit.
(x) The annual prospective rate, effective beginning each July
1, for facilities that commenced operations under the Medicaid
Program subsequent to the base y ear used to establish rates, and
therefore did not file a cost report for the base year, shall be
based on the facility's initial rate, established in accordance w ith
Paragraph (m) of this Rule, and the applicable price le\el
changes, in accordance with Paragraph (1) of this Rule.
(y) Effective for fiscal years beginning on or after fiscal year
1998. installation cost of Fire Sprinkler Systems in an ICF-MR
Facility shall be reimbursed in the following manner
( 1 ) Upon receipt of the documentation listed in Parts (A)
through (E) of this Subparagraph, the Di\ision of
Medical Assistance shall reimburse directly to the
provider 90 percent of the verified cost.
(A) All related invoices.
m
(CJ
(21 The
Verification from the Division of Facility
Services that the Sprinkler S\ stem is needed.
Statement from appropriate authorities that the
Sprinkler Svstem has been installed.
Three bids to install the svstem.
Prior approval from the Division of Medical
Assistance for any installation projected to cost
more than twentv-five thousand dollars
(S25.000).
unreimbursed
13}
installation cost shall be
reimbursed after audit through the annual Cost
Settlement Process. This portion shall be offset by
profits, after taking into consideration anv indirect
profits and direct losses. Anv overpayments
determined after audit shall be returned to the
program by the provider through the annual cost
settlement process.
The installation of the Sprinkler System is subject to
Prudent Buver Standards contained in the HCFA-15.
The Sprinkler System's installation costs shall be
properly recorded on the proyider's ICF-MR Cost
Report.
Histon- Note: Filed as a Temporary Amendment Eff. July 8.
1993 for a period of 180 days or until the permanent rule
becomes effective, whichever is sooner:
Authorit}-G.S. l08A-25(b): 108A-54: 108A-55: 42 C.F.R. Part
44'. Subpart C:
Eff. December 1. 1984:
Amended Eff. August 1. 1995: November 1. 1993: March 1.
1988: January 1. 198':
Temporan' .Amendment Eff .August ". 1998.
Rule-making Agency: Social Services Commission
Rule Citation: 10 NC.4C 49B .0608
Effective Date: August 1. 1998
Findings Reviewed and Approv ed by: Julian Mann. Ill
Authority for the rule-making: S.L. 199'-443. Sec. 12.1'
Reason for Proposed Action: Beginning October 1. 199' any
AFDC or Work First cash assistance benefits recouped by the
count}' that was determined fraudulent, intentional violation or
erroneous shall be used to improve and enhance program
320
SORTH CAROLINA REGISTER
AusustS, 1998
13:3
TEMPORAR Y R ULES
integrity, therefore, 10 NCAC 49B .0608 needs to be temporarily
amended to incorporate the disqualification process and the
applicable sanctions when a recipient or former recipient has
been found to have committed fraud or intentional program
violation in order to receive cash benefits for which they were
not eligible.
Comment Procedures: Anyone wishing to comment should
contact Sharnese Ransome, A PA Coordinator. Social Sen' ices
Commission, NC Division of Social Services. 325 N. Salisbuiy
St.. Raleigh, NC 27603, phone (919) 733-3055.
CHAPTER 49 - AID TO FAMILIES WITH
DEPENDENT CHILDREN (AFDC)
SUBCHAPTER 49B - ELIGIBILITY
DETERMINATION
SECTION .0600 - PAYMENT PROCEDURES
.0608 CLIENT FRAUD AND INTENTIONAL
PROGRAM VIOLATIONS
(a) County Responsibilities; Fraud Prevention.
(1) The county department of social services shall be
responsible for the development of an operational
program for fraud prevention, detection and
investigation. Fraud program organizational
requirements must be established based on the number
of (AFDC) (AFDC or Work First) recipients, the
effectiveness of the fraud prevention program, the
frequency of suspected fraud cases, and the resources
available to the agency.
(2) The county department must designate staff to be
responsible for fraud activities.
(3) The county shall strive to obtain all Social Security
numbers and correctly complete them on computer
input forms.
(4) The recipient shall be notified no less frequently than
at each eligibility review of his obligation to report
within 10 days, all changes in income, resources, or
other changes which may effect the amount of
payment. Failure to do so within that time may
constitute a willful withholding of such information,
and permit the countv department to recover the
overpayment.
(b) County Department Responsibilities; Detection and
Investigation:
(1) The county department shall investigate any
information which indicates that a recipient may be
receiving AFDC or Work First to which he the
recipient is not entitled.
(2) In the investigation the staff designated for fraud
shall:
(A) verify that all responsibilities have been
fulfilled as set forth in the rules and regulations
governing the AFDC or Work First program:
(B) determine whether frirther investigation should
be undertaken to support the belief that fraud is
suspected;
(C) evaluate the evidence to substantiate fraud and
the intent to defraud:
(D) determine the amount of the erroneous
payment.
(3) When there is reason to suspect fraud, the county
director must ensure that the agency has explained to
the client his responsibilities for reporting changes in
his circumstances to the agency. The director shall
determine whether the agency should investigate
further and shall present the case and fraud summary
to the county board of social services for action unless
the board has delegated this responsibility to him.
(4) The fraud summary shall include:
(A) identifying information;
(B) a description of the fraudulent act;
(C) evidence to substantiate fraud and the intent to
defraud;
(D) evidence to substantiate the amount of
ineligible assistance received;
(E) information concerning the client's
competency, educational background, ability to
know right from wrong, any statement
volunteered by the client in response to the
accusation and any other information which
may help explain the client's current situation.
(c) County Board's Responsibilities.
(1) The county board of social services, or its designee,
shall be responsible for determining whether there is
a basis for the belief that misrepresentation may have
been committed by a person.
(2) The county board, or its designee, shall determine if
the person:
(A) willfully and knowingly misstated, provided
incorrect or misleading information in response
to either oral or written questions; or
(B) willfully and knowingly tailed to report
changes which might have affected the amount
of payment; or
(C) willfully and knowingly failed to report the
receipt of benefits which he knew he was not
entitled to receive.
(3) There must be physical evidence to substantiate a
determination that fraud was the reason for the
overpayment.
(4) If the board, or its designee, determines fraud is
suspected, it shall instruct the agency to pursue one or
more, of the following actions:
(A) administrative recoupment which is defined as:
(i) involuntary reduction of the AFDC or
Work First Work First grant may be
collected from all income and assets of
the assistance unit. The assistance unit
shall retain an amount not less than 90
percent of the assistance payment
received by a family of similar
composition with no other income; or
(ii) a voluntar) grant reduction. There is no
NORTH CAROLINA REGISTER
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321
TEMPOHAR Y R ULES
limitation on the amount of the
reduction;
(iii) voiuntan, recipient refund. There is no
limitation on the amount of the refund:
(B) administrative disqualification:
(jj Hearing
(1) A n administrative
disqualification hearing will be
initiated by the county
department of social services
when there is sufficient evidence
to indicate that an individual has
intentionally violated a program
regulation \n order to receive
cash assistance for which the
individual is not eligible. The
hearing will be held and any
administrative action initiated
within 90 davs of the date the
individual js notified in writing
has
that the hearing
scheduled
been
OD
No hearing will be
held when the amount of the
overpayment is less than one
hundred dollars (S 100.00).
The county board of social
services shall designate the
county director or their impartial
county employee to act as the
hearings officer. Duties are to:
provide written notification of
the hearing date, time, and
location to the client at least 30
davs in advance of the date of the
hearing. Written notification of
the hearing shall include the
client's right to have legal
representation, a witness or
\s itnesses. or vsaive the hearing,
conduct the hearing to collect all
evidence and testimony,
render a vvritten decision to the
client and DSS within 15 davs as
to whether an intentional
program violation has occurred.
Written notification that the
hearing decision will be mailed
by Certified Mail
Return
Receipt Requested.
The notice will inform the client
of the right to further appeal to
the state (or higher local
authority ) and the procedures for
such appeal. \Vhen an
intentional program violation is
found, the notification will
inform the client of the length of
the sanction and that client
remains a part of the Work First
case and subject to all program
requirements. When no
intentional program violation is
found, the notification will
inform the client that the
overpayment will be collected
pursuant to 1 0 NCAC 49B .0606.
(ii) Sanctions:
(I) The county department of social
apply
services
shall
disqualification
follows: 12
liii}
to the (2)
sanctions as
months of
ineligibility for the first offense:
24 months for the second
offense: and permanently
disqualified for the third offense.
(II) The sanction shall be applied by
reducing the work first cash
assistance payment by the
disqualified person's share of the
payment for the appropriate
period of sanction. The
disqualified person remains a
part of the work first case and
subject to all program
requirements.
Repayment:
The county department of social
services will follow procedures pursuant
to Part (c)(4)(A) of this Rule in the
collection of overpayments.
civil court action: or
criminal court action.
(d) Board Decision: Agency Follow-up:
(1) If the board, or its designee, suspects fraud, the
deparmient's findings and actions shall be reported
immediately' to the assistance payments section. The
county director shall keep the county board and
assistance payments section informed on all cases
referred for court and repayment action.
The county department of social services is
responsible for supporting the local prosecutor by
accomplishing necessary interviews in accordance
vsith the prosecutor's requirements, recommending
possible wimesses. providing necessary investigative
reports, and taking other action deemed necessary by
legal authorities.
Regardless of what action is taken by- the board or the
court, the county shall continue to work with the
client and shall promptly notify the client of the action
taken in his case.
The county shall maintain records on the number of
cases referred for investigation, the number of
suspected fraud referrals, action taken to recover the
overpay ment and amounts recovered.
(e) In fraud cases, if a county fails to act promptly on
indications of ineligibilits. federal and state financial
(3)
(4)
I
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participation shall not be available.
HistorvNote: AuthohtvG.S. 108A-25: 108A-39: N3B-I53:
S.L. 1997-443: 45 C.F.R. 233.20; 45 C.F.R. 235.110:
Ejf. February 1. 1984:
Amended Eff. June I. 1990: February' 1. 1986:
Temporary AmendmenI Eff. August 1, 1998.
TITLE 11 - DEPARTMENT OF INSURANCE
Rule-making Agency: Department of Insurance
Rule Citation: // NCAC 12.0840 - .0842
Effective Date: .August 1, 1998
Findings Reviewed by Julian Mann: Approved
Authority for the rule-making: G.S. 58-2-40. 58-54-10. 58-
54-15. 58-54-25
Reason for Proposed Action: The Balanced Budget .Act of
1997 became effective July 1. 1998, and requires state medicare
supplement rules to adopt NAIC Medicare Supplement
Insurance Minimum Standards Model Regulations.
Comment Procedures: Written comments may be sent to
Theresa Shackelford. NC Department of Insurance, PO Box
26387, Raleigh, NC 27611.
CHAPTER 12 - LIFE AND HEALTH DIVISION
SECTION .0800 - MEDICARE SUPPLEMENT
INSURANCE
.0840 HIGH DEDUCTIBLE PLANS
(a] In addition to the benefit plans specified in 1 1 NCAC 12
.0836. the following high deductible benefit plans are authorized
for use in this State. The provisions of 1 1 NCAC 12 .0836(a)
through (d) apply to the plans in this Rule.
(1) Standardized Medicare supplement benefit high
deductible Plan F shall include only the following:
100% of covered expenses following the payment of
the annual high deductible Plan F deductible. The
covered expenses include the core benefit as defined
in 1 1 NCAC 12 .0835(2). plus the Medicare Part A
deductible, skilled nursing facility care, the Medicare
Part B deductible. 1 00% of the Medicare Part B
excess charges, and medically necessary emergency
care in a foreign country as defined in 1 1 NCAC 12
.0835(3)(a). (b). (c). (e). and (h) respectively. The
annual high deductible Plan F deductible shall consist
of out-of-pocket expenses, other than premiums, for
services covered by the Medicare supplement Plan F
policy, and shall be in addition to any other specific
benefit deductibles. The annual high deductible Plan
F deductible shall be one thousand five hundred
dollars ($1500) for 1998 and 1999. and shall be based
on the calendar year
(2) Standardized Medicare supplement benefit high
deductible Plan J shall consist of only the following:
100% of covered expenses following the payment of
the annual high deductible Plan J deductible. The
covered expenses include the core benefit as defined
in 1 1 NCAC 12 .0835(2). plus the Medicare Part A
deductible, skilled nursing facility care. Medicare Part
B deductible. 1 00% of the Medicare Part B excess
charges, extended outpatient prescription drug benefit,
medically necessary emergency care jn a foreign
country, preventive medical care benefit and at-home
recovery benefit as defined in JJ. NCAC 12
■0835(3)(a). (bltcLteLiglthltilaridijJ
respectively. The annual high deductible Plan J
deductible shall consist of out-of-pocket expenses,
other than premiums, for services covered by the
Medicare supplement Plan J policy, and shall be in
addition to any other specific benefit deductibles. The
annual deductible shall be one thousand five hundred
dollars $1500 for 1998 and 1999. and shall be based
on a calendar year
(b) After 1999. the annual deductibles for the plans described
in Subparagraphs (a)(1) and (a)(2) of this Rule shall be those
established annually by the Secretary of the United States
Department of Health and Human Services to reflect the change
in the Consumer Price Index for all urban consumers for the 12-
month period ending with August of the preceding year, and
rounded to the nearest multiple often dollars ($10).
History Note: Authority G.S. 58-2-40: 58-54-10: 58-54-15;
58-54-25:
Temporaiy Adoption Eff. August 1, 1998.
.0841 CREDITABLE COVERAGE
(a) As used in this Rule:
(1) "Continuous period of creditable coverage" means the
period during which an individual was covered by
creditable coverage, if during the period of the
coverage the individual had no breaks m coverage
greater than 63 days.
(2) "Creditable coverage" has the same meaning as in
G.S. 58-68-30(c)(l).
(b) If an applicant qualifies under 1 1 NCAC 12 .0837(a) and
submits an application during the time period referenced in 1 1
NCAC 12 .0837(a) and, as of the date of application, has had a
continuous period of creditable coverage of at least six months.
the issuer shall not exclude benefits based on a preexisting
condition.
tc} If the applicant qualifies under 1 1 NCAC 12 .0837(a) and
submits an application during the time period referenced in 1 1
NCAC 12 .0837(a) and, as of the date of application, has had a
continuous period of creditable coverage that is less than six
months, the issuer shall reduce the period of any preexisting
condition exclusion by the aggregate of the period of creditable
coverage applicable to the applicant as of the enrollment date.
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The manner of the reduction under this Paragraph shall be a
prescribed b> the Secretary of the United States Department of
Health and Human Services.
Id) 1 1 NCAC 12 .0837(b) does not apply to this Rule.
History Note: Authorin- G.S. 58-2-40: 58-54-10: 58-54-15:
58-54-25:
Temporun' Adoption Eff. Aiisust L 1998.
.0842 GUARANTEED ISSUE FOR ELIGIBLE
PERSONS
(a) As used in this Rule:
( 1) "Bank.ruptc\" means when a Medicare^Choice
organization that is not an issuer has filed, or has had
filed against it^ a petition for declaration of
bankruptcy and has ceased doing business in the state.
(2) "Emplo\ee welfare benefit plan" means a plan, fund
or program of employee benefits as defined m 29
U.S.C. i}l002 (Employee Retirement Income Security
Act).
(3) "Insolvency" means when an issuer, licensed to
transact the business of insurance jn thjs State, has
had a final order of liquidation entered against it with
a finding of insolvenc\ bv a court of competent
jurisdiction in the issuer's state of domicile.
(4) "Medicare-^Choice plan" means a plan of coverage for
health benefits under Medicare Part C as defined in
Section 1859. Title iV. Subtitle A. Chapter 1 of RL.
105-33, and includes:
(A) Coordinated care plans which provide health
care services, including but not limited to
health maintenance organization plans (with or
without a point-of-service option), plans
offered by provider-sponsored organizations.
and preferred provider organization plans:
(B) Medicare medical savings account plans
coupled with a contribution into a
Medicare+Choice medical savings account:
and
(C) Medicare-Choice private fee-for-sery ice plans.
Eligible persons are those individuals described in
Paragraph (c) of this Rule who apply to enroll under the poiic\
not later than 63 days after the date of tfie termination of
enrollment described in Paragraph (c) of this Rule, and who
submit e\ idence of the date of termination or disenrollment w ith
the application for a Medicare supplement policy.
With respect to eligible persons, an issuer shall not denN or
condition the issuance or effectiveness of a Medicare
supplement policy described in Paragraph (d) of this Rule that is
offered and is available for issuance to new enroliees by the
issuer, shall not discriminate in the pricing of such a Medicare
supplement policx because of health status, claims experience,
receipt of health care, or medical condition, and shall not impose
an exclusion of benefits based on a preexisting condition under
such a Medicare supplement policy.
(c) An eligible person is an individual described in an\ of the
following subparagraphs:
( 1 ) The indi\idual is enrolled under an emplo\ee welfare
benefit plan that provides health benefits that
supplement the benefits under Medicare: and the plan
terminates, or die plan ceases to provide all such
supplemental health benefits to the individual:
(2) The individual is enrolled with a Medicare+Choice
organization under a Medicare+Choice plan under
part C of Medicare, and there are circumstances
permitting discontinuance of the individual's election
of the plan under the first sentence of Section
1851(e)(4) of the federal Social Security Act, which
consists of the following:
"Effective as of January f, 2002, an individual may
discontinue an election of a Medicare-Choice plan
im
offered b\ a Medicare+Choice organization other than
during an annual, coordinated election period [under
Medicare] and make a new election under this section
if
(A) The organization's or plan's certification
[under this part] has been terminated or the
organization has terminated or otherwise
discontinued providing the plan in thie area in
which the individual resides:
The individual is no longer eligible to elect the
plan because of a change in tlie individual's
place of residence or other change in
circumstances specified bv the Secretary of the
United States Department of Health and
Human Services, but not including termination
of the individual's enrollment on the basis
described in Section 1851(g)(3)(B) of the
federal Social Security' Act (where the
individual has not paid premiums on a timely
basis or has engaged rn disruptive behavior as
specified in standards under Section 1856). or
the plan is terminated for all individuals within
{£1
iDj
a residence area:
The individual demonstrates, in accordance
w ith guidelines established bv the Secretary of
the United States Department of Health and
Human Services, that:
(i) The organization offering the plan
substantially violated a material
provision of the organization's contract
under this part in relation to the
individual, including the failure to
provide an enrol lee on a timeK' basis
medicalK' necessary care for which
benefits are available under the plan or
the failure to provide such covered care
in accordance with applicable quality
standards: or
(ii) The organization, or agent or other
entity acting on tlie organization's
behalf, material K misrepresented the
plan's provisions rn marketing the plan
to the individual: or
The individual meets such other exceptional
conditions as the Secretary of the United States
m
itt^Wii^H
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Q}
Department of Health and Human Services
may provide."
The individual is enrolled with:
lA}
fflj
£C}
(D}
IE)
An eligible organization under a contract under
Section 1 876 (Medicare risk or cost): or
A similar organization operating under
demonstration project authority, effective for
periods before April 1 . 1 999; or
An organization under an agreement under
Section 1 833(a)( 1 )( A) (health care prepayment
plan); or
An organization under a Medicare Select
policy; and
The enrollment ceases under the same
circumstances
that
would permit
{4} The
discontinuance of an individual's election of
coverage under the first sentence of Section
1851(e)(4) of the federal Social Security Act as
delineated in Subparagraph (2) of this
Paragraph.
individual js enrolled under a Medicare
supplement policy and the enrollment ceases because:
(A) Of the insolvency of the issuer or bankruptcy
of the nonissuer organization or of other
involuntary termination of coverage or
enrollment under the policy;
(B) The issuer of the policy substantially violated
a material provision of the policy; or
(C) The issuer, or an agent or other entity acting on
the issuer's behalf, materially misrepresented
the policy's provisions in marketing the policy
to the individual;
(5) The individual was enrolled under a Medicare
supplement policy and terminates enrollment and
subsequently enrolls, for the first time, with any
Medicare+Choice organization under a
Medicare+Choice plan under part C of Medicare, any
eligible organization under a contract under Section
1876 (Medicare risk or cost), any similar organization
operating under demonstration project authority, an
organization under an agreement under Section
1833(a)(1)(A) (health care prepayment plan), or a
Medicare Select policy; and the subsequent
enrollment is terminated by the enrollee during any
period within the first 12 months after the subsequent
enrollment (during which the enrollee is permitted to
terminate the subsequent enrollment under Section
1851(e) of the federal Social Security Act); or
The individual, upon first becoming eligible for
benefits under part A of Medicare at age 65. enrolls in
a Medicare+Choice plan under part C of Medicare.
m
and disenrolls Irom the plan by not later than 12
months after the effective date of enrollment,
(d) The Medicare supplement policy to which eligible persons
are entitled under:
(JQ Subparagraphs (c)(1). (2). (3) and (4) of this Rule is
a Medicare supplement policy which has a benefit
package classified as Plan A^ B^ C^ or F offered by
any issuer.
(2) Subparagraph (c)(5) is the same Medicare supplement
policy in which the individual was most recently
previously enrolled, if available from the same issuer,
or. if not so available, a policy described in
Subparagraph (1) of this Paragraph.
(3) Subparagraph (c)(6) shall include any Medicare
supplement policy offered by any issuer.
(e) At the time of an event described in Paragraph (c) of this
Rule because of which an individual loses coverage or benefits
due to the termination of a contract or agreement, policy, or plan,
the organization that terminates the contract or agreement, the
issuer terminating the policy, or tlie administrator of the plan
being terminated, respectively, shall notify the individual of his
or her rights under this Section, and of the obligations of issuers
of Medicare supplement policies under Paragraph (b) of this
Rule. Such notice shall be communicated contemporaneously
with the notification of termination. At thie time of an event
described in Paragraph (c) of this Rule because of which an
individual ceases enrollment under a contract or agreement,
policy, or plan, the organization that offers the contract or
agreement, regardless of the basis for the cessation of
enrollment, the issuer offering the policy, or the adminisfrator of
the plan, respectively, shall notify the individual of liis or her
rights under this Section, and of tlie obligations of issuers of
Medicare supplement policies under Paragraph (b) of this Rule-
Such notice shall be communicated within 10 working days of
the issuer receiving notification of disenrollment.
HistoiyNote: Authority G.S. 58-2-40; 58-54-10; 58-54-15;
58-54-25;
Temporary Adoption Eff. August 1. 1998.
TITLE 15A - DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
Rule-making Agency: Commission for Health Services
Rule Citation: 15A NCAC 13B . 1624
Effective Date: July 8. 1998
Findings Reviewed by Julian Mann: Approved
Authority for the rule-making: G.S. 130A-290; 130A-294;SL
1997-374
Reason for Proposed Action: The rule amendment is proposed
to satisfy the General Assembly's legislated request to the
Commission (House Bill 1032) and was drafted by the Division
of Waste Management (Solid Waste Section) staff and members
of the North Carolina chapter of the Solid Waste Association of
America.
Comment Procedures: The Division of Waste Managetnent is
in the process of drafting a temporary rule that would amend
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current regulatory requirements for landfill liner design.
Comments or requests for copies of the proposed draft rule may-
be addressed to Joan Troy, Solid Waste Section. 401 Oherlin
Road Suite 150. Raleigh. NC 27605. or phone (919) 733-0692.
ext. 271, or email troyjbdwastenot.ehnrstate.nc.us.
CHAPTER 13 - SOLID WASTE MANAGEMENT
SUBCHAPTER 13B - SOLID WASTE MANAGEMENT
SECTION .1600 - REQUIREMENTS FOR MUNICIPAL
SOLID WASTE LANDFILL FACILITIES (MSWLFs)
.1624 CONSTRUCTION REQUIREMENTS FOR
MSWLF FACILITIES
(a) This Rule establishes the performance standards and
minimum criteria for designing and constructing a new MSWLF
unit or lateral expansion of existing MSWLF units. Additional
standards for the cap system are described in Rule .1627 of this
Section.
(b) New MSWLF units and lateral expansions shall comply
with the following design and construction criteria:
( 1 ) Base liner system description. The base liner system
is constructed on the landfill subgrade and shall be
designed to efficiently contain, collect and remove
leachate generated by the MSWLF unit. At a
minimum, the components of the liner system shall
consist of the following.
(A) A Base Liner. The base liner shall consist of
one of the following designs. The design
described in Subpart (b)( 1 )( A)(i) of this Rule is
the standard composite liner. If a landfill
owner or operator proposes to utilize one of the
alternative composite liner designs described in
Subparts (b)( 1 )( A)(ii) and (iii) of this Rule, the
owner or operator shall demonstrate through a
model acceptable to the Division that the
proposed design will ensure that maximum
concentration levels (MCLs) listed jn Table 1
will not be exceeded in the uppermost aquifer
at the relevant point of compliance as
established in Rule .1631(a)(2) of this Section.
For these two designs, the Division may waive
the site-specific modeling requirement if it can
be demonstrated that a previous site for which
a model was approved had similar
hydrogeologic characteristics, climatic factors
and volume and ph> sical and chemical leachate
characteristics. If an alternative liner design
other than Subparts (b)( l)(A)(ii) and (iii) of
this Rule is proposed, the Division shall require
site-specific, two-phase modeling as described
in Subpart (b)(i)(A)(iv) of this Rule.
fA-)(i) A composite liner, liner utilizing a
compacted cla\ liner (CCL). The
composite liner is one liner which that
consists of two components; a
geomembrane liner installed above and
im
in direct and uniform contact with a
compacted clay liner, liner with a
minimum thickness of 24 inches (0.61
m) and a permeability of ns more than
1.0 X 10"^ cm/sec. The composite liner
shall be designed and constructed in
accordance with Subparagraphs (b)(8)
and (^ LLOj of this Rule.
A composite liner utilizing a
geosynthetic clav liner (GCL). The
composite liner is one liner that consists
of three components: a geomembrane
liner installed above and m uniform
contact with a GCL overlying a
compacted clay liner with a minimum
thickness of 18 inches (0.46 m) and a
permeability of no more than 1 .0 X 10'^
cm/sec. The composite liner shall be
designed and constructed in accordance
with Subparagraphs (8), (9), and ( 10) of
this Rule.
A composite liner utilizing two
geomembrane liners. The composite
liner consists of three components; two
geomembrane liners each with an
overlying leachate drainage system
designed to reduce the maximum
predicted head acting on the lower
membrane liner to less than one inch.
The lower membrane liner shall overlie
a compacted clay liner with a minimum
thickness of J_2 inches (0.31m) and a
permeability of no more than 1.0 X 10'
cm/sec. The composite liner system
shall be designed and constructed in
accordance with Subparagraphs (b)(8)
and (10) of this Rule.
An alternative base liner. An alternative
base liner system may be approved by
the Division if the owner or operator
demonstrates through a two-phase
modeling approach acceptable to the
Division that the alternative liner design
meets the following criteria:
(I) the rate of leakage through the
alternative liner system will be
less than or equal to the
composite liner system defmed in
Subpart (b)( 1 )(A)(i) of this Rule;
and
(11) the design will ensure that
concentration values listed in
Table 1 will not be exceeded in
the uppermost aquifer at the
relevant point of compliance as
established in Rule .1631(a)(2)
of this Section.
(B) A leachate collection system (LCS). The LCS
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is constructed directly above the composite
base liner and shall be designed to effectively
collect and remove leachate from the MSWLF
unit. The secondary function of the LCS is to
establish a zone of protection between the
composite base liner and the waste. TTie LCS
shall be designed and constructed in
accordance with Subparagraphs (b)(2), (4#),
(11). and (12). (12) and (13) of this Rule.
(2) Leachate collection system design, design and
operation.
(A) The leachate collection system shall be
hydraulically designed to remove leachate from
the landfill and ensure that the leachate head on
the composite liner does not exceed one foot.
A means of quantitatively assessing the
performance of the leachate collection system
under uniform conditions must be provided in
the engineering plan. The performance
analysis must evaluate the flow capacities of
the pipe drainage network necessarv to convey
leachate to the storage facility or off-site
transport location. The engineering evaluation
shall incorporate the following criteria:
(i) At a minimum, the impingement rate on
the drainage layer shall be equal to the
peak — monthly — precipitation — rate — te
evaluate the relationship between base
slope, drainage layer permeability', and
collector pipe spacing.
(i+)£i} At a minimum, the geometry of the
landfill and the leachate collection
system shall be designed to control and
contain the volume of leachate
generated b\ the 24-hour. 25-year storm.
fwKii) The performance analysis shall evaluate
the leachate collection system for the
flow capacities during conditions when
the maximum impingement rate occurs
on the LCS. Collection pipe The LCS
flow capacity shall be sized designed to
drain the critical volume of leachate
reduce the head on the liner system
generated by the 24-hour. 25-year storm
to less than one foot within 72 hours
after the storm event, in a specified
period of time.
(B) The leachate collection system shall be
designed to provide a zone of protection at
least 24 inches thick separating the composite
liner from landfilling activities, activities, or
shall be subject to approval from the Division
upon a demonstration of equivalent protection
for the liner system.
(C) The leachate collection system shall be
designed to resist include a drainage layer, a
pipe — network — wrth — clean outs. — and — the
necessary filters designed to prevent physical
m
clogging and promote leachate collection and
removal from the landfill.
The leachate collection system shall be
operated to remove leachate from the landfill in
such a way as to ensure that the leachate head
on the composite liner does not exceed one
foot under normal operating conditions.
(3) Horizontal separation requirements.
(A) Property line buffer New MSWLF units at a
new facility shall establish a minimum 300-foot
buffer between the MSWLF unit and all
property lines.
(B) Private residences and wells. All MSWLF
units at a new facility shall establish a
minimum 500-foot buffer between the
MSWLF unit and existing private residences
and wells.
(C) Surface waters. All MSWLF units at new
facilities shall establish a minimum 50-foot
buffer between the MSWLF unit and any
stream, river, or lake, unless the owner or
operator can demonstrate:
(i) To the Division that the alternative
management of the water and any
discharge will adequately protect the
public health and environment: and
(ii) That the construction activities will
conform to the requirements of Sections
404 and 401 of the Clean Water Act.
(D) Existing landfill units. An adequate buffer
distance shall be established between a new
MSWLF unit and any existing landfill units to
establish a ground-water monitoring system as
set forth in Rule .1631 of this Section.
(E) Existing facility buffers. At a minimum, a
lateral expansion or new MSWLF unit at an
existing facility shall conform to the
requirements of the effective permit.
(4) Vertical separation requirements. A MSWLF unit
shall be constructed so that the post settlement
bottom elevation of the base liner system is a
minimum of four feet above the seasonal high ground-
water table and bedrock. The nature of the materials
establishing this separation shall be subject to
Division approval.
(5) Survey control. One permanent benchmark of known
elevation measured from a U.S. Geological Survey
benchmark shall be established and maintained for
each 50 acres of developed landfill, or part thereof at
the landfill facility. This benchmark shall be the
reference point for establishing vertical elevation
control.
(6) Location coordinates. The North Carolina State Plane
(NCSP) coordinates shall be established and one of its
points shall be the benchmark of known NCSP
coordinates.
(7) Landfill subgrade. The landfill subgrade is the in-situ
soil layer(s). constructed embankments, and select fill
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isus^.
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providing the foundation for construction of the unit.
A foundation analysis shall be performed to determine
the structural integrit\ of the subgrade to support the
loads and stresses imposed b\ the weight of the
landfill and to support overlying facilitv' components
and maintain their integrity of the components.
Minimum post-settlement slope for the subgrade shall
be two percent. Safetv' factors shall be adequateK
specified for facilities located in a Seismic Impact
Zones.
(A) Materials required. The landfill subgrade shall
be adequately free of organic material and
consist of in-situ soils or a select fill if
approved by the Division.
(B) Construction requirements.
(i) The landfill subgrade shall be graded in
accordance with the Division approved
plans and specifications.
(ii) The owner or operator of the MSWLF
units may be required b%' the permit to
notify the Division's hydrogeologist and
inspect the subgrade when excavation is
completed or if bedrock or other
unpredicted subsurface conditions are
encountered during excavation.
(C) Certification requirements. At a minimum, the
subgrade surface shall be inspected in
accordance with the following requirements:
(i) Before beginning construction of the
base liner s\stem. the project engineer
shall visually inspect the exposed
surface to evaluate the suitability of the
subgrade and document that the surface
is properly prepared and that the
elevations are consistent with the
Division approved engineering plans:
(ii) TTie subgrade shall be proof-rolled using
procedures and equipment specified b\
the design or project engineer: and
(iii) The subgrade shall be tested for density
and moisture content at a minimum
frequenc\ specified in the Division
approved plans.
(8) Compacted cla\ liners. Compacted cla\' liners are lov\
permeability barriers designed to control fluid
migration in a cap liner s>stem or base liner s>stem.
(A) Materials required. The soil materials used in
constructing a compacted clay liner ma>
consist of on-site or off-site sources, or a
combination of sources: sources ma\ possess
adequate native properties or may require
bentonite conditioning to meet the permeability
requirement. The soil material shall be free of
particles greater than three inches in any
dimension.
<4^ For the base liner system, the compacted
cla\ liner shall be constructed with a
minimum thickness of 21 inches (0.61
m) and a permeability of no more than 1
X-fO" cm'sec.
(h) For the cap system^ the compacted clay
iineF — shaH — be — constructed — wrth — a
minimum thiclcness of 18 inches (0.16
m) and a permeability of no more than 1
X-14"^ cm/sec.
(B) Construction requirements. Construction
methods for the compacted clay liner shall be
based upon the type and quality of the borrow
source and shall be verified in the field by
constructing test pad(s). The project engineer
shall ensure that the compacted clay liner
installation conforms with the Division
approved plans including the following
minimum requirements:
(i) A test pad shall be constructed prior to
beginning installation of the compacted
clay liner and whenever there is a
significant change in soil material
properties. The area and equipment.
liner thickness, and subgrade slope and
conditions shall be representative of full
scale construction. Acceptance and
rejection criteria shall be verified for the
tests specified in accordance with Part
(C) of this Subparagraph. For each lift,
a minimum of three test locations shall
be established for testing moisture
content, density, and a composite
sample for recompacted lab
permeability. At least one shelby tube
sample for lab permeability testing, or
another in situ test approved by the
Division, shall be obtained per lift.
(ii) Soil conditioning, placement, and
compaction shall be maintained within
the range identified in the moisture-
density -permeability relation de\eloped
in accordance with Subpart (C) of this
Subparagraph.
(iii) The final compacted thickness of each
lift shall be a maximum of six inches.
(iv) Prior to placement of successive lifts,
the surface of the lift in place shall be
scarified or otherwise conditioned to
eliminate lift interfaces,
(v) The final lift shall be adequately
protected from environmental
degradation.
(C) Certification requirements. The project
engineer shall include in the construction
quality assurance report a discussion of all
quality assurance and quality control testing
required in this Subparagraph. The testing
procedures and protocols shall be submitted in
accordance with Rule .1621 of this Section and
approved b> the Division. The results of all
328
\ORTH CAROLINA REGISTER
AusustS, 1998
13:3
TEMP0R.4R Y R ULES
testing shall be included in the construction
quality assurance report including
documentation of any failed test results,
descriptions of the procedures used to correct
the improperly installed material, and
statements of all retesting performed in
accordance with the Division approved plans
including the following requirements:
(i) At a minimum, the quality control
testing for accepting materials prior to
and during construction of a compacted
clay liner shall include; particle size
distribution analysis, Atterberg limits,
triaxial cell laboratory permeability,
moisture content, percent bentonite
admixed with soil, and the moisture-
density-permeability relation. The
project engineer shall certify that the
materials used in construction were
tested according to the Division
approved plans,
(ii) At a minimum, the quality assurance
testing for evaluating each lift of the
compacted clay liner shall include:
moisture content and density, and
permeability testing. For each location
the moisture content and densitv shall be
compared to the appropriate moisture-
density-permeability relation. The
project engineer shall certify that the
liner was constructed using the methods
and acceptance criteria consistent with
test pad construction and tested
according to the Division approved
plans,
(iii) Any tests resulting in the penetration of
the compacted clay liner shall be
repaired using bentonite or as approved
by the Division.
(9) Geosynthetic Clay liners. GeosvTithetic clav liners are
geosvTithetic hydraulic barriers manufactured in sheets
and installed b\ field seaming techniques.
(A) Materials required. Geosvnthetic claN liners
shall consist of natural sodium bentonite clay
or equivalent, encapsulated between two
geotextiles or adhered to a geomembrane. The
liner material and any seaming materials shall
have chemical and physical resistance not
adversely affected by environmental exposure,
waste placement, leachate generation and
subgrade moisture composition. Accessory
bentonite. used for seaming, repairs and
penetration seaming shall be made from the
same sodium bentonite as used in the
geosynthetic clay liner or as recommended by
the manufacturer The type of geosvnthetic
clay liner shall be approved by the Division
according to the criteria set forth in this Part.
m
lii}
(BJ
(Q
Reinforced geosynthetic clay liners shall
be used on all slopes greater than
10H:1V.
The geosynthetic clay liner material
shall have a demonstrated hydraulic
conductivity of not more than 5.0 X 10 ''
cm/sec under the anticipated confining
pressure-
Design and Construction requirements. The
design engineer shall ensure that the design of
the geosvnthetic clay liner installation
conforms to the requirements of the
manufacturer's recommendations and the
Division approved plans. The Division
approved plans shall provide for and include
the following provisions:
(i) The surface of the supporting soil upon
which the geosynthetic clay liner will be
installed shall be reasonably free of
stones, organic matter, protrusions,
loose soil, and any abrupt changes in
grade that could damage the
geosynthetic clay liner;
Materials placed on tog of the GCL
shall be placed according to Division
approved plans. Equipment used to
install additional geosynthetics shall be
specified by the design engineer and as
recommended by the manufacturer. A
minimum of J_2 inches of separation
between the application equipment and
the geosynthetic clay liner shall be
(iii)
(ii)
provided when applying soil materials;
Materials which become prematurely
hydrated shall be removed, repaired, or
replaced, as specified by the project
engineer and the Division approved
plans.
Field seaming preparation and methods,
general orientation criteria, and
restrictive weather conditions;
Anchor trench design;
Critical tensile forces and slope stability,
including seismic design;
Protection fi"om environmental damage:
and
Physical protection fi'om the materials
installed directly above the geosynthetic
clay liner.
Certification requirements.
(ij The project engineer shall ensure that
the geosynthetic clay installation
conforms to the requirements of the
manufacturer's recommendations and
the Division approved plans.
(ii) The project engineer shall include in the
construction quality assurance report a
discussion of quality assurance and
tiyj
(vii)
tyiiij
13:3
NORTH CAROLINA REGISTER
Aususl3,1998
329
TEMPOHA RYR ULES
quality control testing to document that
material is placed according to the
approved plans,
(iii) The project engineer shall include in the
construction quality assurance report a
discussion ot' the approved data
resulting itom the qualits assurance and
quality control testing required in this
Subparagraph,
(iv) The testing procedures and protocols for
field installation shall be submitted jn
accordance with Rule .1621 of this
Section and approved b\ the Division,
(v) The results of ah testing shall be
included in the construction quality
assurance report. including
documentation of an> failed test results,
descriptions of the procedures used to
correct the improperK installed material.
and statements of aH retesting
performed in accordance with the
Division approved plans including the
following:
(I) Quality' control testing of the raw
materials and manufactured
product;
(II) Field and independent laboratory'
destructive testing of
geos\nthetic cla\ liner samples;
(III) Before beginning installation of
the geosynthetic clay liner, the
project engineer shall visually
inspect the exposed surface to
evaluate the suitability of the
subgrade and document that the
surface is properK prepared and
that the elevations are consistent
with the Division approved
engineering plans.
(WIO) Geomembrane liners. Geomembrane liners are
geosynthetic hydraulic barriers manufactured in sheets
and installed b\ field seaming techniques.
(A) Materials required. The geomembrane liner
material shall have a demonstrated water vapor
transmission rate of not more than 0.03 gm'Ur-
4ay7 The liner material and an\ seaming
materials shall have chemical and physical
resistance not adverseK affected b\
environmental exposure, waste placement and
leachate generation, The t)pe of geomembrane
shall be approved b\ the Division according to
the criteria set forth in this Part.
(i) High densitv' pol\eth\lene
geomembrane liners shall have a
minimum thickness of 60 mils.
(ii) The minimum thickness of an>
geomembrane approved by the Division
shall be greater than 30 mils.
(ii)
(iii)
(iv)
(V)
(vi)
<-W(ll)
(B) Construction requirements. The project
engineer shall ensure that the geomembrane
installation conforms to the requirements of the
manufacturer's recommendations and the
Division approved plans including the
following:
(i) The surface of the supporting soil upon
which the geomembrane will be
installed shall be reasonably free of
stones, organic matter, protrusions,
loose soil, and any abrupt changes in
grade that could damage the
geomembrane:
Field seaming preparation and methods,
general orientation criteria, and
restrictive weather conditions;
Anchor trench design;
Critical tensile forces and slope
stability;
Protection from environmental damage;
and
Physical protection from the materials
installed directly above the
geomembrane.
(C) Certification requirements. The project
engineer shall include in the construction
qualit} assurance report a discussion of the
approved data resulting from the quality
assurance and quality control testing required
in this Subparagraph. The testing procedures
and protocols for field installation shall be
submitted in accordance with Rule .1621 of
this Section and approved by the Division. TTie
results of all testing shall be included in the
construction quality assurance report including
documentation of any failed test results,
descriptions of the procedures used to correct
the improperly installed material, and
statements of all retesting performed in
accordance with the Division approved plans
including the following:
(i) Quality control testing of the raw
materials and manufactured product;
(ii) At a minimum, test seams shall be made
upon each start of work for each
seaming crew, upon ever, four hours of
continuous seaming, every time seaming
equipment is changed or if significant
changes in geomembrane temperature
and weather conditions are observed;
(iii) Nondestructive testing of all seams; and
(iv) Field and independent laboratory
destructive testing of seam samples.
Leachate collection pipes. A leachate collection pipe
netyyork shall be a component of the leachate
collection system and shall be hjdraulicalK designed
to convey leachate from the MSWLF unit tc an
appropriately sized leachate storage or treatment
330
NORTH CAROLINA REGISTER
August 3, 1998
TEMPORAR Y R ULES
facility or a point of off-site transport. Leachate
collection piping shall comply with the following:
(A) Materials required.
(i) The leachate collection piping shall have
a minimum nominal diameter of six
inches.
(ii) The chemical properties of the pipe and
any materials used in installation shall
not be adversely affected by waste
placement or leachate generated by the
landfill.
(iii) The physical properties of the pipe shall
provide adequate structural strength to
support the maximum static and
dynamic loads and stresses imposed by
the overlying materials and any
equipment used in construction and
operation of the landfill. Specifications
for the pipe shall be submitted in the
engineering report.
(B) Construction requirements.
(i) Leachate collection piping shall be
installed according to the Division
approved plan.
(ii) The location and grade of the piping
network shall provide access for
periodic cleaning.
(iii) The bedding material for the leachate
collection pipe shall consist of a coarse
aggregate installed in direct contact with
the pipe. The aggregate shall be
chemically compatible with the leachate
generated and shall be placed to provide
adequate support to the pipe. The
bedding material for main collector lines
shall be extended to and in direct
contact with the waste layer or a graded
soil or granular filter.
(C) Certification requirements. The project
engineer shall include in the construction
quality assurance report a discussion of the
quality assurance and quality control testing to
ensure that the material is placed according to
the approved plans. The testing procedures
and protocols for field installation shall be
submitted in accordance with Rule .1621 of
this Section and approved by the Division. The
results of all testing shall be included in the
construction quality assurance report including
documention documentation of any failed test
results, descriptions of the procedures used to
correct the improperly installed material, and
statements of all retesting performed in
accordance the Division approved plans
including the following:
(i) All leachate piping installed from the
MSWLF unit to the leachate storage or
treatment facility shall be watertight.
{\mm
(ii) The seal where the piping system
penetrates the geomembrane shall be
inspected and non-destructively tested
for leakage.
Drainage layers. Any soil, granular, or geosynthetic
drainage nets used in the leachate collection system
shall conform to the following requirements:
(A) Materials required.
(i) The chemical properties of the drainage
layer materials shall not be adversely
affected by waste placement or leachate
generated by the landfill,
(ii) The physical and hydraulic properties of
the drainage layer materials shall
promote lateral drainage of leachate
through a zone of relatively high
permeability or transmissivity under the
predicted loads imposed by overlying
materials.
Construction requirements,
(i)
(B)
{^im
The drainage layer materials shall be
placed according to the Division
approved plans and in a manner which
prevents equipment from working
directly on the geomembrane.
(ii) The drainage layer materials shall be
stable on the slopes specified on the
engineering drawings.
(C) Certification requirements. The project
engineer shall include in the construction
quality assurance report a discussion of the
quality assurance and quality control testing to
ensure that the drainage layer material is placed
according to the approved plans. The testing
procedures and protocols for field installation
shall be submitted in accordance with of Rule
.1621 of this Section and approved by the
Division. The results of all testing shall be
included in the construction quality assurance
report including documentation of any failed
test results, descriptions of the procedures used
to correct the improperly installed material, and
statements of all retesting performed in
accordance with the Division approved plans.
Filter layer criteria. All filter collection layers used in
the leachate collection system shall be designed to
prevent the migration of fine soil particles into a
courser grained material, and permit water or gases to
freely enter a drainage medium (pipe or drainage
layer) without clogging.
(A) Materials required.
(i) Graded cohesionless soil filters. The
granular soil material used as a filter
shall have no more than five percent by
weight passing the No. 200 sieve and no
soil particles larger than three inches in
any dimension,
(ii) Geosynthetic filters. Geosvnthetic filter
13:3
NORTH CAROLINA REGISTER
Aueust3.1998
331
TEMPOKAR Y RULES
materials shall demonstrate adequate
permeabilit\ and soil particle retention,
and chemical and phssicai resistance
which is not ad\'ersel\ aftected b\ waste
placement, any overlying material or
leachate generated b\ the landtlll.
(B) Construction requirements. All filter layers
shall be installed in accordance with the
approved engineering plan and specifications.
Geos\nthetic filter materials shall not be
wrapped directly around leachate collection
piping.
(C) Certification requirements. The project
engineer shall include in the construction
quality assurance report a discussion of the
quality assurance and quality control testing to
ensure that the filter layer material is placed
according to the approved plans. The testing
procedures and protocols for field installation
shall be submitted in accordance with Rule
.1621 of this Section and approved by the
Division. The results of all testing shall be
included in the construction quality assurance
report including documentation of an) failed
test results, descriptions of the procedures used
to correct the improperK installed material, and
statements of all retesting performed in
accordance with the Division approved plans.
f444(14) Special engineering structures. Engineering structures
incorporated in the design and necessary to comply
with the requirements of this Section shall be
specified in the engineering plan. Material,
construction, and certification requirements necessary
to ensure that the structure is constructed according to
the design and acceptable engineering practices shall
be included in the Division approved plan.
{4-14(15) Sedimentation and erosion control. Adequate
structures and measures shall be designed and
maintained to manage the run-off generated b\ the 24-
hour. 25-year storm event, and conform to the
requirements of the Sedimentation Pollution Control
Law(15ANCAC4).
f44-H 16) Construction quality assurance (CQA) report.
(A) A CQA report shall be submitted:
(i) After completing landfill construction in
order to qualify the constructed
MSWLF unit for a permit to operate;
(ii) After completing construction of the cap
system in accordance with the
requirements of Rule .1629 of this
Section; and
(iii) According to the reporting schedule
developed in accordance with Rule
.1621 of this Section.
(B) The CQA report shall include, at a minimum,
the information prepared in accordance with
the requirements of Rule .1621 of this Section
containing results of all construction quality
assurance and construction quality control
testing required in this Rule including
documentation of any failed test results,
descriptions of procedures used to correct the
improperly installed material and results of all
retesting performed. The CQA report shall
contain as-built drawings noting any deviation
from the approved engineering plans and shall
also contain a comprehensive narrative
including but not limited to daih reports from
the project engineer and a series of color
photographs of major project features.
(C) The CQA report shall bear the seal of the
project engineer and a certification that
construction was completed in accordance
with:
(i) The CQA plan:
(ii) The conditions of the permit to
construct;
(iii) The requirements of this Rule; and
(iv) Acceptable engineering practices.
(D) The Division shall review the CQA report
uithin 30 davs of a complete submittal to
ensure that the report meets the requirements of
this Subparagraph.
Table 1
CHEMICAL
MCL(mg/l
Arsenic
0.05
Barium
1.0
Benzene
0.005
Cadmium
0.01
Carbon Tetrachloride
0.005
Chromium (he\a\alent)
0.05
332
.\ORTH CAROLINA REGISTER
Ausust 3,
1998
13:3
TEMPORAR Y R ULES
2,4-Dichlorophenoxy acetic acid
0.1
1 ,4-Dichlorobenzene
0.075
1,2-Dichloroethane
0.005
1 , 1 -Dichloroethylene
0.007
Endrin
0.0002
Fluoride
4
Lindane
0.004
Lead
0.05
Mercury
0.002
Methoxychlor
0.1
Nitrate
10.0
Selenium
0.01
Silver
0.05
Toxaphene
0.005
L 1 , 1 -Trichloromethane
0.2
Trichloroethylene
0.005
2.4,5-Trichlorophenoxy acetic acid
0.01
Vinyl Chloride
0.002
History Note: Authority' G.S. J 30.4-294:
Eff. October 9, 1993:
Temporary Amendment Eff. July 8, 1998.
'3:3
mmsmmsu^^^^m
m
APPROVED RULES
This Section includes the Register Xotice citation to Rules approved by the Rules Review- Commission (RRC) at its meeting of
June 18. 1998 pursuant to G.S. 150B-2I. 1 ""(aid I and reported to the Joint Legislative Administrative Procedure Ch-ersight
Committee pursuant to G.S. 150B-21. 16. The full text of rules are published below when the rules have been approved bv RRC
in a form different from that originally noticed in the Register or when no notice was required to be published in the Register
The rules published infill text are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B-21. 1 ~.
These rules unless othenvise noted, will become effective on the 31st legislative day of the 1998 Short Session of the General
.Assembly or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill receives
an unfavorable final action or the den' the General .Assembly adjourns. Statutory reference: G.S. 1 50B-21 .3.
APPROVED RULE CITATION
REGISTER CITATION TO THE
NOTICE OF TEXT
10
NCAC
47B
.0102*
12
NCAC
07D
.0204*
12
NCAC
07D
.1106*
12
NCAC
lOB
.0206*
17
NCAC
06B
.3204
17
NCAC
09L
.0105
21
NCAC
14L
.0403
26
NCAC
01
.0102*
12:11 NCR 939
12:08 NCR 622
12:08 NCR 622
12:18NCR 1703
12:17NCR 1610
12:17NCR 1610
12:11 NCR 925
not required. G.S.
1508-21. 5(b)(1)
TITLE 10 - DEPARTMENT OF HEALTH AND
HUMAN SERVICES
CHAPTER 47 - ST\TE/COUNTY SPECIAL
ASSISTANCE FOR ADULTS
SUBCHAPTER 47B - ELIGIBILITY
DETERMINATION
SECTION .0100 - APPLICATION PROCESS
.0102 INITIAL INTERVIEW
The applicant shall be allowed to ha\e an> person(s) of his
choice participate in the inter\ iew. The eligibility, specialist shall
explain the eligibility, requirements. The applicant shall be
informed of the following:
(1) He must pro\ide the name of collaterals, such as
landlords. emplo\ ers. and others u ith know ledge of
his situation.
(2) It is the county's responsibility, to use collateral
sources to substantiate or \ erit\ information necessar.
to establish eligibilit). except that, for an applicant
mo\ ing to North Carolina to join a close relative
(parent, grandparent, brother, sister, spouse, or child),
the close relati\e must pro\ide \erit1cation of his or
her state residencN to the count> department of social
services. Collateral sources of information include
knowledgeable indi\iduals. business organizations,
public records, and documentary e\idence. If the
applicant does not w ish necessarv collateral contacts
to be made, he can withdraw the application. If he
denies permission to contact necessarv collaterals, the
application shall be rejected due to failure to
cooperate in establishing eligibilit>.
(3) A worker will visit his home or the domiciliarv care
facilitv. The purpose of the visit is to veriiv eligibilit>
requirements.
(4) The applicant has the right to:
(a) Recei\e assistance if found eligible:
(b) Be protected against discrimination on the
ground of race, creed, or national origin b\
Title VI of the Civil Rights Act of 1964: He
ma\ appeal such discrimination;
(c) Spend his assistance pa\Tnent as he wishes, but
it must be in his best interest and that of his
family: A substitute pavee ma> be appointed
for those individuals who cannot manage the
payment:
(d) Receive his monthK check in ad\ance until the
pa\ment is terminated b\ appropriate action:
(e) Have an\ information gi\en to the agenc\ kept
in confidence:
(f) Appeal, if his assistance will be denied,
changed or terminated: his pa\ment is
incorrect based on the counr\"s interpretation
of state regulations: or his request for a change
in the amount of assistance was deia\ed
be\ond 30 da>s or rejected;
(g) ReappK at an\ time, if found ineligible:
(h) Withdraw from the assistance program at an\
time.
(5) The applicant's responsibilities. He must:
(a) Provide the county department, state and
federal officials the necessar\ sources from
which the county department can locate and
obtain information needed to determine
tt
fSs
m^^mmik
Ausust 3. 1998
m
13:3
APPROVED RULES
eligibility.
(b) Report to the county department of social
services any change in situation that may affect
eligibility for a check within five days after it
happens. The meaning of fraud shall be
explained. The applicant shall be informed
that he may be suspected of fraud if he fails to
report a change in situation and that in such
situations, he may have to repay assistance
received in error and that he may also be tried
by the courts for fraud.
(c) Informthecountydepartmentof social services
of any person or organization against whom he
has a right to recovery. When he accepts
medical assistance (included with all SA except
CD), the applicant assigns his rights to third
party insurance benefits to the state. He shall
be informed that it is a misdemeanor to fail to
disclose the identity of any person or
organization against whom he has a right to
recovery.
(d) Immediately report to the county department
the receipt of a check which he knows to be
erroneous, such as two checks for the same
month, or a check in the wrong amount. If he
does not report such payments, he may be
required to repay any overpayment.
History Note: Authority G.S. I08A-4I(b): 143B-153:
Eff. January 1, 1983:
Temporary Amendment Eff. October 28. 1997:
Amended Eff. April 1. 1999.
TITLE 12 - DEPARTMENT OF JUSTICE
CHAPTER 7 - PRIVATE PROTECTIVE SERVICES
SUBCHAPTER 7D - PRIVATE PROTECTIVE
SERVICES BOARD
SECTION .0200 - LICENSES: TRAINEE PERMITS
license; or
(2) gained when employed by a company contracting
private protective services to another person, firm,
association or corporation while the company is not in
possession of a valid private protective services
license.
The Board may consider formal classroom training which is
directly related to the private protective services industry. The
Board may grant one half hour of credit for each hour of formal
training, but shall grant no more than two hundred hours.
Paragraph (c) of this Rule is to be considered in addition to any
other formal training credits. No credit shall be given for formal
training required pursuant to these Rules.
History Note: Authority' G.S. 74C-5: 74C-8:
Eff. June 1, 1984:
ARRC Objection October 19, 1988:
Amended EfT. April 1. 1999: February 1, 1996; March 1, 1989;
December 1. 1985.
SECTION .1100 - TRAINING AND SUPERVISION
FOR PRIVATE INVESTIGATOR ASSOCIATES
.1106 TIME LIMITS ON EXPERIENCE
(a) The Board will consider any practical experience gained
within 10 years of the application date. The Board shall not
consider experience claimed by the applicant if:
( 1 ) gained by contracting private protective services to
another person, firm, association, or corporation while
not in possession of a valid private protective services
license; or
(2) gained when employed by a company contracting
private protective services to another person, firm,
association, or corporation while the company is not
in possession of a valid private protective services
license
(b) The Board will consider any educational experience
referred to in 1 2 NCAC 7D . 1 1 05.
History Note: Statutory Authority G.S. 74C-5(2):
Eff. July 1. 1994:
Amended Eff. .April 1. 1999.
.0204 DETERMINATION OF EXPERIENCE
(a) Experience requirements shall be determined in the
following manner:
(1) one year experience = 1,000 hours;
(2) two years experience = 2,000 hours;
(3) three years experience = 3,000 hours.
(b) Applicants must be prepared to make available upon
request written documentation to verify experience.
(c) When applying for a license, registration or trainee permit,
the board shall not consider any experience claimed by the
applicant if:
(1) gained by contracting private protective services to
another person, firm, association or corporation while
not in possession of a valid private protective services
CHAPTER 10 - N.C. SHERIFFS' EDUCATION AND
TRAINING STANDARDS COMMISSION
SUBCHAPTER lOB- N.C. SHERIFFS' EDUCATION
AND TRAINING STANDARDS COMMISSION
SECTION .0200 - ENFORCEMENT RULES
.0206 SUMMARY SUSPENSIONS: OR DENIALS
(a) The Commission may summarily suspend or deny the
certification of a justice officer or instructor when, in the opinion
of the Commission, the public health, safety, or welfare requires
this emergency action of summary suspension or denial. The
Commission has determined that the following conditions
specifically affect the public health, safety, or welfare and
13:3
NORTH CAROLINA REGISTER
August 3, 1998
335
APPROVED RULES
therefore it. by and through the Director, shall utihze summary'
suspension or denial following a full investigation of the matter
when:
( 1 ) the applicant for certification or the certified justice
officer has committed or been convicted of a violation
of the criminal code which would require a permanent
revocation or denial of certification; or
(2) the justice officer has failed to comply with the
training requirements of 12 NCAC lOB .0500 and
.0600, and. 1300; or
(3) the certified deputy sheriff or detention officer fails to
satisfactorily complete the minimum in-service
training requirements as prescribed in 12 NCAC I OB
.2 100; or
(4) the applicant for certification has refused to submit to
the drug screen as required in 12 NCAC I OB .0301(6)
or .0406(c)(3) or in connection with an application for
or certification as a justice officer or a criminal justice
officer as defined in 12 NCAC 9A .0103(6); or
(5) the applicant for certification or the certified officer
has produced a positive result on any drug screen
reported to the Commission as specified in 12 NCAC
I OB .0410 or reported to any commission, agency, or
board established to certify, pursuant to said
commission, agency, or boards' standards, a person as
a justice officer or a criminal justice officer as defined
in 12 NCAC 9A .0103(6), unless the positive result is
explained to the Commission's satisfaction,
(b) Without limiting the application of Chapter I7E of the
General Statutes of North Carolina, a person who has had his or
her certification summarily suspended or denied may not
exercise the authority or perform the duties of a justice officer
during the period of suspension or denial.
Histoiy Note: Authority G.S. 1 7E-8: 1 7E-9; 150B-3(c):
EJf. January 1, 1992:
Amended Eff. January I, 1993:
Temporary Amended Eff. March 1, 1998:
Amended Eff. April /, 1999: August 1. 1998.
TITLE 26 - OFFICE OF ADMINISTRATIVE
HEARINGS
CHAPTER 1 - GENERAL
SECTION .0100 - GENERAL
.0102 OFFICE HOURS: FILING OF DOCUMENTS
History Note: Authority G.S. 150B-11:
Eff.Januaiyl. 1991:
Repealed Eff. July 1 . 1998.
336
iWRTH CAROLINA REGISTER
August 3, 1998
13:3
R ULES RE VIE W COMMISSION
1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursdaw Ausust 20. 1998, 10:00
a.m.. at 130'^ Glenwood .4ve.. .Assembly Room. Raleigh. NC. .Anyone wishing to submit written comment on any rule before
the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by Monday.
.August n. 1998. at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review Commission at
919-"33-2~21. .Arnvne wishing to address the Commission should notif' the RRC staff and the agency at least 24 hours prior
to the meeting:
RULES REVIEW COMMISSION MEMBERS
Appointed by Senate
Teresa L. SmalKvood, Vice Chairman
Jim Funderburke
Vemice B. Howard
Philip O. Redwine
David Twiddy
Appointed by House
Paul Powell. Chairman
Anita White, 2"'^ Vice Chairman
Mark Garside
Steve Rader
George Robinson
RULES REVIEW COMMISSION MEETING DATES
July 23. 1998
August 20. 1998
September 17. 1998
October 15. 1998
November 19, 1998
MEETING DATE: AUGUST 20, 1998
LOG OF FILINGS
RULES SUBMITTED: JUNE 20, 1998 THROUGH JULY 20, 1998
AGENCY/DIVISION RULE NAME RULE CITATION
ACTION
DHHS/COMMISSION FOR MH/DD/SAS
Definitions
10NCAC45H.0201
Amend
JUSTICE/NC ALARM SYSTEMS LICENSING BOARD
Statement of Purpose
Definitions
Required CLE Hours
Accreditation Standards
Non-Resident Licensee
Recording and Reporting CLE Credits
Non-Compliance
EDUCATION, STATE BOARD OF
Hearings
Early Admission to Kingergarten
Annual Performance Standards
Annual Performance Standards
Liabilit) Insurance
TRANSPORTATION, DEPARTMENT OF/DIVISION OF MOTOR VEHICLES
Original Application
Reneal Applications
Requirements
Original Application
12NCAC 11 .0501
Adopt
12NCAC 11 .0502
Adopt
12NCAC 11 .0503
Adopt
12NCAC 11 .0504
Adopt
12NCAC 11 .0505
Adopt
12NCAC 11 .0506
Adopt
12NCAC 11 .0507
Adopt
16NCAC6C.0502
Amend
16NCAC6E.0105
Adopt
16NCAC6G.0305
Amend
16NCAC6G.0310
Adopt
16NCAC6G .0501
Adopt
19NCAC31.0202
Amend
19NCAC3I.0203
Amend
19NCAC31 .0501
Amend
19NCAC31.0502
Amend
13:3
NORTH CAROLINA REGISTER
August 3, 1998
337
RULES REVIEW COMMISSION
Renewal Application
STATE BOARDS/DENTAL EXAMINERS, BOARD OF
Definitions
STATE BOARDS/REAL ESTATE COMMISSION, BOARD OF
Proof of Licensure
19NCAC3I.0503 Amend
21 NCAC I6V.0102 Amend
21NCAC58A.0101 Amend
RULES REVIEW COMMISSION
July 23, 1998
MINUTES
The Rules Review Commission met on July 23. 1998, in the Assembly Room of the Methodist Building, 1307 Glenwood Avenue,
Raleigh. North Carolina. Commissioners in attendance were Chairman Paul Powell, Teresa L. Smallwood. Vemice B. Howard,
George S. Robinson, Jim R. Funderburk, Anita A. White, and Mark P. Garside.
Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Specialist; Glenda B. Gruber,
Administrative Assistant; and Sandv Webster.
The following people attended:
Valerie Chaffin
Charlotte Hall
Portia Rochelle
Shamese Ransome
Patricia Purser
David Brown
Dedra Alston
Ed Norman
Hunton & Williams
DHHS/MH/DD/SAS
DHHS/DMA
DHHS/DSS
DHHS/DSB
DENR
DENR
DENR
APPROVAL OF MINUTES
The meeting was called to order at 10:05 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or
corrections concerning the minutes of the June 18. 1998 meeting. There being none, the minutes were approved.
FOLLOW-UP MATTERS
10 NCAC I4G .0102 - DHHS/Commission for MH/DD/SAS: The rewritten rule submitted by the agency was approved by the
Commission.
10 NCAC 41 A .0007 - DHHS Social Services Commission: The rewritten rule submitted b\ the agency was approved by the
Commission.
15A NCAC lOG .0404 - DENR'Wildlife Resources Commission: The rewritten rule submitted b\ the agency was approved by the
Commission.
LOG OF FILINGS
Chairman Powell presided over the review of the log and all rules v\ere approved with the following exceptions:
15ANCAC 7H .0310- DENR/Coastal Resources Commission: This rule was withdrawn by the agency.
1 5 A NCAC 1 8 A .3 1 0 1 , ,3 1 02. .3 1 05, .3 1 08, and .3 1 09 - DEN R Commission for Health Ser\ ices: The Commission objected to .3 1 0 1
due to ambiguit> and lack of necessity. Because there is no authorit) for setting occupational standards for workers and supervisors.
there is no need for the definitions in ( 1 ) and (2). It is also not clear what standards the Department will use in approving the one day
courses and video instructions. In the last sentence in (7). it is not clear if a visual inspection must include one of the listed activities.
33H
NORTH CAROLINA REGISTER
Ausiist3, 1998
13:3
R ULES RE VIE W COMMISSION
The Commission objected to .3102 due to lack of statutory authority. The last sentence in this rule is not consistent with G.S. 130A-
131.7(12). As long as the lowest blood test shows a blood lead concentration of 15 - 19 micrograms per deciliter, it is irrelevant how
high the others are. The Commission objected to .3105 due to ambiguity". In (b)(3), it is not clear what is meant b> "properly"
installed, established, and maintained. The Commission objected to .3108 due to lack of statutory authority and ambiguity. In (a),
it is not clear what form and manner is prescribed for applications for certificates of compliance. In (c)(1), there is no authority for
the Commission to set occupational requirements for workers and supervisors performing work to comply with the maintenance
standard. In (c)(3), it is not clear what manner has been prescribed by the owner for the written summary. In (c)(4), it is not clear
what standards the Department will use in approving laboratories or methods. In (e), it is not clear what manner is prescribed by the
Department. The Commission objected to .3 109 due to ambiguity and lack of necessity. In (e), it is not clear what method is approved
by the Department. As written, the paragraph is meaningless since the Department sends the notice. Commissioner Rader voted not
to approve the rules because they exceed their statutory authority in that they may arguably require demolition of a structure.
COMMISSION PROCEDURES AND OTHER MATTERS
Mr DeLuca reported on his trip to Salt Lake Cit> for the NASS/ACR (National Association of Secretaries of State/Administrative
Codes and Registers). The next meeting will be on August 20, 1998.
The meeting adjourned at 10:55 a.m.
Respectfully submitted,
Sandy Webster
13:3 NORTH CAROLINA REGISTER August 3, 1998 339
CONTESTED CASE DECISIONS
1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Ojfice of
Administrative Hearings. (919) '33-2698.
OFFICE OF ADMINISTRATIVE HEARINGS
Chief Administrative Law Judge
JULIAN MANN. Ill
Senior .Administrative Law Judge
FREDG. MORRISON JR.
ADMIMS TRA TI I E LA U Jl DGES
Brenda B. Becton
Sammie Chess Jr.
Beecher R. Gra>
Melissa Owens
Meg Scott Phipps
Robert Roose\elt ReilK Jr.
Dolores O. Smith
AGENCY
ALCOHOLIC BEN ER\GE CONTROL COMMISSION
Alcoholic Bexerage Control Commission v Jesse Jacob Jo\ner. Jr
."Mcoholic Bexerage Control Commission \ .Axis Entertainment
Sokha Huor Ramadneh \ .-Mcoholic Be\erage Control Commission
Alcoholic Beverage Control Commission \ .Axis Entertainment
Tarus Jackson \ .Alcoholic Beverage Control Commission
CRIME CONTROL AND PLBLIC SAFETY
Marcella Skaggs \ Crime Victims Compensation Commission
Talmadge E McHenrx v Crime Victims Compensation Commission
Kenneth T Lvlle v Crime Victims Compensation Commission
Mia Thompson-Clark \ Crime Victims Compensation Commission
ENVIRONMENT AND NATLRAL RESOLRCES
Ronald Prater \ Department ot Environment and Natural Resources
John M Silvia \ Department of Environment and Natural Resources
Gregor. B Jackson. Brenda R Jackson \ Greene Ct> HIth Dept . ENR
Robert G GotT. Sr \ Department of En\ ironmenl and Natural Resources
Scotland Water. Cedar Circle \ Environment and Natural Resources
Robert G GotT. Sr v Department of Environment and Natural Resources
HEALTH AND HLMAN SERVICES
Stanlev C Ochulo \ OtT .Administrative Hearings. Mr R Marcus Lodge
Oliver C Johnson. Hazel T Johnson \ Health and Human Ser^ ices
Louise Sireater v Health and Human SerMces
Richard E Lawrence. Rebecca .A Lawrence \ Health and Human Ser\ ices
Division of Facility Services
Mooresville Hospital Mgmt .Associates. Inc d/b/a Lake Norman Regional
Medical Center \ DHR. Facilitv Services. Ceniflcate of Need Section
and
.Autumn Corporation and McKinlev V Jumev
Constellation Health Sen ices. Inc and Constellation Senior Services.
Inc \ DHR. Facilm Services. Group Care Licensure Section
and
Diversified Health Group. LLC and The Innovative Health Group. Inc
Sunlite Retirement Home. \\ inme Jane Johnson \ DHR. Facilm Sen ices
.Ann Davis Rest Home \ Group Care Licensure Section
CASE
DATE OF
PLBLISHED DECISION
NLMBER
ALJ
DECISION
REGISTER CITATION
97 ABC 1438
Phipps
06/19/98
98 ABC 0357*-
Reillv
07/02/98
98 ABC 0382
Smith
06/30/98
13 03 NCR 350
98 ABC 0401 ♦•
Reillv
07/02/98
98 ABC 0768
Smith
07/13/98
98 CPS 006.S
Owens
06/05/98
98CPS01I6
Gra\
06/24/98
98CPS0I7b
Reillv
07/06/98
98 CPS 0349
Chess
05/14/98
97EHR045I
ReilK
07/02/98
97EHR 1646
Chess
06/03/98
98 EHR 0042
Reillv
07/02/98
98 EHR 0072*-
Grav
06/25/98
98 EHR 0236
Smith
06/09/98
98 EHR 0448'-
Grav
06/25/98
98 DHR 002 1
Reillv
06/24/98
98 DHR 0090
Grav
07/08/98
98 DHR 019(1
Grav
06/03/98
98 DHR 0209
Phipps
07/15/98
97 DHR 1209
Reillv
06/23/98
97 DHR 1529
98 DHR 0124
98 DHR 0197
Grav
Phipps
Phipps
06/24/98
06/11/98
06/23/98
340
NORTH CAROLINA REGISTER
August 3. 1998
13:3
CONTESTED CASE DECISIONS
AGENO
Diane Lingard v DHR. Facilm Svcs. Health Care Personnel Reg
Kimberly Annette Smith Hull \ DHHS. Division of Facilit\ Ser\ices
Deborah Ann Holt v DHHS. Division of Facilitv Services
Johnnie E Williams v DHHS. Division of Facilitv Services
Division of Medical Assistance
Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Medical Ctr.
and Harr\ Mahannah. M D v DHHS. Division of Medical Assistance
CASE
DATE OF
NUMBER
ALJ
DECISION
98 DHR 02 14
Becton
06/22/98
98 DHR 0239
Phipps
06/23/98
98 DHR 0348
Phipps
06/22/98
98 DHR 0639
Reilly
07/02/98
97 DHR 0621
Smith
07/08/98
PI BUSHED DECISION
REGISTER CITATION
Division of Social Services
William & Crvstal Steakley \
DHHS. Division of Social Services
Child Support Enforcement Section
Jeffery Lee Graves v Department of Human Resources
Donald L Carr. Jr v Department of Human Resources
Marvin Diggs v Department of Human Resources
Dennis Lee McNeill v Department of Human Resources
BvTon O Ashby II V Department of Human Resources
Billy Anthony Jr v Department of Human Resources
Alton D Bagley \ Department of Human Resources
Bemel B Berr\ Jr v Department of Human Resources
Anthony MontgomePi v Department of Human Resources
Terrv' Letterman v Department of Human Resources
Paul J Mobley. Jr v Department of Human Resources
Robert A Sherer v Department of Human Resources
Wade A Burgess v Department of Human Resources
Robert L Robinson \ Department of Human Resources
Jamie A Hurtt \ Department of Health & Human Services
Renardo Jenkins v Department of Human Resources
Anthony Love \ Department of Human Resources
Steven Kent Gold \ Department of Human Resources
Leroy J Poole v Department of Human Resources
Michael Bernard Hill v Department of Health & Human Services
Charlie Ratliff Jr v Department of Health & Human Services
Tabatha D Pate \ Department of Human Resources
Charlie Gray Hunt Jr v Department of Human Resources
Robert L Williams \ Department of Human Resources
Elijah G Deans v Department of Health & Human Senices
Vickie E Lane v Michael L Adams. Department of Human Resources
Barbara Fanta-Blandine v Department of Human Resources
Tenta M Sharpe v Department of Human Resources
Ruth McFadden \ Department of Human Resources
Division of Women 's and Children 's Health
Joseph A Nawas \ DHHS. Women's/Children's Health. Nutrition Svcs
98 DHR 0076
Gray
07/20/98
98CRA0137
Becton
06/23/98
98 CRA 0545
Reilly
06/08/98
98CRA0588
Reilly
06/24/98
96CSE1305
Grav
06/22/98
96CSE 1435
Mann
07/15/98
97CSE 1393
Reillv
06/24/98
97CSE 1424
Chess
06/02/98
97CSEI435
Smith
06/12/98
97CSE 1442
Phipps
06/17/98
97CSE 1492
Smith
06/22/98
97CSE1568
Phipps
06/17/98
97CSE 1605
Mann
07/15/98
98CSE0071
Morrison
06/1 2/98
98CSE0130
ReilK
07/15/98
98CSE0307
Morrison
07/06/98
98CSE0310
Smith
06/23/98
98CSE0312
Phipps
06/23/98
98 CSE 0333
Morrison
07/01/98
98CSE0375
Reillv
07/02/98
98 CSE 0421
Becton
07/15/98
98 CSE 0449
Mann
07/15/98
98 CSE 0556
Becton
06/23/98
98 CSE 0607
Smith
06/22/98
98 CSE 0682
Smith
06/22/98
98 CSE 0867
Phipps
07/20/98
96 DCS 2105
Grav
07/08/98
97 DCS 1486
Morrison
06/22/98
98 DCS 0468
Morrison
06/09/98
98 DCS 0675
Reilly
07/15/98
98 DHR 0637
Phipps
07/02/98
JISTICE
Alarm Systems Licensing Board
Claude Da\ id Huggins v Alarm Systems Licensing Board
Education and Training Standards Division
Odis Fitzgerald Darden \ Sheriffs' Education & Training Standards Comm
Hearl Oxendine v Criminal Justice Education & Training Stds Comm
Dar\l LaMar Brvant v Sheriffs' Education & Training Standards Comm
William Scott K.ey v Sheriffs' Education & Training Standards Comm
Paul Harvey Taylor v DOJ. Criminal Justice Ed & Training Stds Comm
98DOJ0871
Morrison
07/09/98
97 DOJ 1698
Reillv
06/12/98
98 DOJ 0121
Smith
06/22/98
98 DOJ 0430
Grav
07/21/98
98 DOJ 0432
Becton
06/08/98
98 DOJ 0841
Phipps
07/10/98
STATE PERSONNEL
Department of Correction
Terrs T Rees v Department of Correction
Leon Owens v Department of Correction
Terrs T Rees s Department of Correction
Carl W Craven. II s Pender Correctional Institution
Crime Control and Public Safet)-
Roger D Davis \ Crime Control & Public Safety, St Hss-y Patrol
97 0SP 1671*"
Smith
06/30/98
98 OSP 0050
Becton
07/10/98
98OSP0I19*-'
Smith
06/30/98
98 OSP 0633
Smith
06/25/98
97 OSP 061 7
Chess
05/27/98
13:3
NORTH CAROLINA REGISTER
August 3, 1998
341
CONTESTED CASE DECISIONS
AGENCY
Employment Security Commission
Jane B Bolin and Arlenc G Sellers \ Employment Securir. Commission
Jane B Bolin and Arlene G Sellers \ Emplosment Secunts Commission
Environment and Natural Resources
Charles Anthony Bruce v ENR. Division of Parks and Recreation
Health and Human Services
Angela M Miles \ Cumberland County Department of Social Services
Chanty S\vick\ Cumberland County Department of Social Sen ices
Ruth Holrosd V Montgomen Cty DSS. Children's Senices
Angela M Miles \ Cumberland County Department of Social Services
Delores Laveme Rich \ Health & Human Sen ices. Dorothea Di\ Hosp
Anthony M Ruiz v Department of Health & Human S\cs. 'I'outh Svcs
Secretary of State
Jonathans! Demers \ Department of Secretars of State
Department of Transportation
Earn \V Da\is\ Depanment of Transportation
University of North Carolina
Douglas Eo\e. Jr \ L'NC Hospitals
Deborah J Fenner \ NC Central Uni\ ersity
Joyce M Smith \ North Carolina Central University
Jonathan L Fann v North Carolina State University Physical Plant
STATE TREASl RER
Hugh A Wells \ Consolidated Judicial Retirement System of NC.
Bd of Trustees Teachers and State Emplovees' Retirement Svstem
CASE
DATE OF
PI BUSHED DECISION
MMBER
AU
DECISION
REGISTER CITATION
97 0SP 1122''
Chess
06/02/98
97 0SP1134*'
Chess
06/02/98
98 OSP 0240
Reilly
06/08/98
97OSP06I3''
Gra\
07/10/98
97 OSP 0775
Gra\
07/10/98
97 OSP 1586
Smith
05/27/98
13:02 NCR 257
98 OSP 0084*'
Gra\
07/10/98
98 OSP 0120
Gra\
07/08/98
98 OSP 0454
Gray
06/04/98
97 OSP 1018
Becton
07/07/98
13:03 NCR 343
98 OSP 0241
Gray
07/08/98
97 OSP 0662
Reillv
06/08/98
97 OSP 0902
Chess
05/29/98
97 OSP 1297
Smith
06/25/98
98 OSP 0465
Becton
07/17/98
98DST0316
Morrison
06/05/98
13:01 NCR 166
TR\NSPORTATION
Da\ id Warren Dew et al \ Motor Vehicles. .Alexander Killens Comm
95 DOT 1144
Grav
06/04/98
I NIVERSIT^ OF NORTH CAROLINA
Ladonna P James \ UNC Hospitals
98UNC0591
Becton
07/20/98
Consolidated Cases.
.U2
NORTH CAROLINA REGISTER
August 3, 1998
13:3
I
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
97OSP1018
JONATHAN M. DEMERS,
Petitioner,
V.
DEPARTMENT OF SECRETARY OF STATE,
Respondent.
RECOMMENDED DECISION
This matter was heard by Administrative Law Judge Brenda B. Becton in Raleigh, North CaroHna on March 5-6, 1998.
APPEARANCES
Petitioner: David S Crump. Attorney At Law, Raleigh, North Carolina
Respondent: Marian Hill Bergdolt. Associate Attorney General, N.C. Department of Justice, Raleigh, North Carolina
ISSUES
1 . Was the Reduction in Force ("RIF") of Petitioner's Administrative Assistant II position with Respondent's office substantially
motivated by retaliation or political affiliation discrimination when the majority of Petitioner's job duties were eliminated
when federal legislation was passed which eliminated individual state review of certain securities filings?
2. Were Petitioner's priorit) re-employment rights violated by Respondent during the twelve-month priority re-employment
period?
WITNESSES
The following individuals testified for Petitioner: Petitioner. Charles Malone. Eugene Bruton, Donald Roberts, Perry
Boseman, Edward G. Carr, Jr., John Curry, Susan Smiley, and Joyce Weathersby.
The following individuals testified for Respondent: Eugene J. Cella. Edward G. Carr, Jr., and Joyce Weathersby.
EXHIBITS
The following proposed exhibits submitted by Petitioner were actually admitted into evidence at the hearing:
Exhib
Exhib
Exhib
Exhib
Exhib
Exhib
Exhib
Exhib
Exhib
Exhib
Exhib
Exhib
t 1. Memo from Ed Carr to Jonathan Demers dated December 4. 1996;
1 2. Memo fi^om Ed Carr to Jonathan Demers Regarding DCl Grievance;
t 3, Memo from Jonathan Demers Regarding DCI Grievance;
1 4. Memo from Ed Carr to Jonathan Demers Regarding DCI Grievance;
t 5. August 6. 1996 - Memo to Perr\ Boseman from Jonathan Demers;
t 6. August 9. 1996 - Memo to Whom It May Concern from Jonathan Demers;
t 7, August 8. 1996 - Memo to Jonathan Demers from Perry Boseman;
t 8. Exhibit 9. Application for Employment;
t 10. Letter to Jonathan Demers from Eugene Cella dated October 29, 1 996;
t 1 1 A. Application for Employment;
t 1 IB, Memo from Eugene Cella to Jonathan Demers dated October 29, 1996;
t 12, Application for employment.
The following proposed exhibits submitted by Respondent were actually admitted into evidence at the hearing
Exhibit B, Letter from Office of State Personnel to Clyde Smith with Reduction in Force Plan attached;
Exhibit C, Jonathan Demers" Work Plan.
13:3
NORTH CAROLINA REGISTER
August 3, 1998
343
CONTESTED CASE DECISIONS
Based upon the official documents in the file, sworn testimonv of the witnesses, and other competent and admissible
evidence, the undersigned makes the following:
FINDINGS OF FACT
1. Petitioner was emplo\ed with Respondent in its securities division as a securities examiner from October 1991 to November
30. 1996. His position was classified as an Administrative Assistant II. T vol II. p. 63; Prehearing Order Stipulation I.
2. Petitioner's main job duties in his position were to review and analyze non-profit and mutual fund offering documents to
establish compliance with the North Carolina General Statutes. This required knowledge of securities laws and that Petitioner
review and independently determine ifthe filings met the requirements of the law. T vol II, pp. 21-22. 152-155; Respondent's
Exhibit C.
3. The National Securities Markets Improvements Act of 1 996 ("NSMIA") was passed in the later part of 1 996. Under NSMI A,
states are prohibited from reviewing and anaKzing non-profit and mutual fund offering documents that meet standards
established under federal securities law. After the passage of NSMIA, mutual fund and non-profits filings became notice
filings at the state level. No independent review of the filings is completed by states. T vol I. p. 186; T vol II. pp. 7, 22, 158-
159.
4. The main, non-clerical, job duties performed b\ Petitioner were eliminated upon the passage of NSMIA. Since the passage
of NSMIA. the employees responsible for handling the notice filings are in data-entry or clerical positions with a lower salary
or pay grade than that held by Petifioner. T vol 11. pp. 7-8. 61. 159.
5. Prior to the passage of NSMIA. Respondent was aware that Congress was considering passing a law that would eliminate
individual states' review of some filings. As a result, meetings were held with employees of the securities division prior to
the passage of NSMIA informing them that reductions in force were possible if federal legislation, such as NSMIA. was
passed. In addition. Ed Carr. Respondent's Deputy Secretar. of State and Personnel Director, met with Petitioner a number
of times to inform him that his position would probabK be eliminated ifthe Act passed, so that he would not be surprised.
Tvol l.pp. 108-109; T vol II. pp. 102-103. 155-157.'
6. Two positions in the securities division were eliminated as a result of the passage of NSMIA. Petitioner's position and a
position held b\ Gene Bruton. The position held b\ Mr. Bruton was also one that involved the review and anaKsis of
securities filings or private placement documents. ApproximateK 60° o of Mr. Bruton's job duties were eliminated by
NSMIA. Tvoll. pp. 184-186; Tvol II. pp. 156.
7. Prior to the passage of NSMIA and during the period when the legislation was pending. Perry Boseman, Petitioner's
superv isor. discussed the legislation w ith Petitioner and told Petitioner that he ought to learn how to handle different types
of securities filings, those that were not the subject of the proposed legislation. T vol II. p. 106-107.
8. The decision to eliminate Petitioner's securities enforcement position was made b\ Secretarv of State Janice H. Faulkner after
she had discussed alternatives with Mr. Cella, Petitioner's immediate supervisor, and others. T vol II, pp. 156. 202-204, 206-
208.
9. Petitioner was informed that his position was being eliminated and of his prioritv re-employment rights in a October 29,
1996. letter from Mr. Cella and at a meeting held with Mr Carr. In addition. Respondent completed the priority re-
employment application for Petitioner T vol 1. pp. 111-112. 126-127. 129-130. 189-191; Petitioner's Exhibit 10.
10. Respondent had a Reduction in Force Plan (or Guidelines) that it had adopted in 1985 and which was on file with the Office
of State Personnel. The Plan focuses on reductions in force occurring as a result of budget cuts rather than the elimination
of a specific emplovee's job duties. Therefore, the Plan focuses on steps to take vshen a loss of funding results in the need
to eliminate positions. Some of the Plan's requirements are not necessarily applicable to the type of RIF that occurred in this
case. However, as required in the Plan. Respondent did the following:
A. Respondent considered alternatives in making the decision to eliminate Petitioner's position. It was
determined that it was the least disruptive to eliminate Petitioner's position, since the skills required by
the person holding Petitioner's position were no longer required. Furthermore, at the time of the RIF.
Respondent did not have an available position in its Securities Div ision for someone w ith Petitioner's skills
and qualifications.
344 NORTH CAROLINA REGISTER August 3, 1998 13:3
CONTESTED CASE DECISIONS
B. Through various meetings, employees that might have been subject to a reduction in force as a result of the passage
of NSMIA were notified as soon as possible that their positions might potentially be eliminated. Then, once
NSMIA was adopted. Petitioner was given notice of the elimination of the position very soon after the decision was
made.
C. Petitioner was given written notice of the RIF decision in a letter from Mr. Cella dated October 29, 1 996. The letter
provided the basis for the decision and informed Petitioner that if he wished to appeal the RIF, he should "see Ed
Carr for an explanation of [his] rights and written information on the appeal process."
D. On October 29, 1996, Petitioner met with Mr. Carr. In that meeting. Petitioner was advised of his priority re-
employment rights, appeal rights, and his eligibility for any other services or benefits.
T vol I, pp. 53, 111-114, 126-128, 130-131, 189-191; T vol II, pp. 108-111, 155-158, 160, 206-208; Petitioner's Exhibit 10;
Respondent's Exhibit B.
1 1 . The Office of State Personnel's RIF Office maintains an automated referral system. Every month the RIF Office sends state
agencies a priority re-employment inventory which lists job classification titles and the number of priority applicants they
have in their system for those titles. When an agency has a vacancy, it is required to check that inventory. If the
classification title for the vacancy is on the register, the agency is then required to order the priority re-employment register
from the Office of State Personnel. The agency is then required to review priority re-employment applications, and if a
priority re-employment applicant meets the minimum qualifications for the vacancy, they are required to give that candidate
an interview. They are also required to oifer the position to qualified priority re-employment applicants over applicants who
are not currently state employees.
12. Petitioner was provided with at least thirty days written notice of the RIF and placed on administrative leave for the purpose
of commencing his job search during the thirty-day period. Petitioner was officially informed of the RIF on October 29,
1996. and received his salary and benefits through November 30, 1996. Initially, Respondent tried to figure out a method
for paying both Petitioner and Mr. Bruton through January, as a result of concerns raised by Mr. Bruton regarding health
insurance coverage. However, Respondent determined, through conversations with the Office of State Personnel, that this
could not be done, and paid Petitioner only for thirty days after notice of the RIF, or through November 30, 1996. T vol 1,
pp. 116-118, 189-191; Prehearing. Order Stipulations (a) and (c).
13. In 1995, Respondent was audited by the SBl and State Auditor's office. The written reports from the audits eventually caused
the then Secretary of State, Rufus Edmisten, to resign. Prior to the audits, and Secretary Edmisten's resignation, the office
had a number of employees that worked on "Special Projects." Special Projects tended to be personal work for Secretary
Edmisten and included driving Secretary Edmisten to various events and performing other duties for him. Employees who
performed Special Projects were not required to perform their regular job duties while they worked on the Special Projects.
In addition, these employees were granted some favoritism by Secretary Edmisten. Petitioner was a member of Secretary
Edmisten's Special Projects Team, which was called the Secret Squirrel Squad. Eventually. Petitioner was taken off of the
Special Projects Team, allegedly because he spoke to members of the press during the audit period. T vol 1. p. 161 ; T vol
II, pp. 14-15, 46-47, 76, 79-80, 1 30, 1 66- 1 67, 1 88- 1 89.
14. At the time that Petitioner was hired, and throughout his tenure in the Edmisten administration, Mr. Cella and Mr. Boseman
had very little supervisory power over individuals such as the Petitioner who were involved with the "special projects" or
"Secret Squirrel" activities that took place. Such individuals were tasked to the "special projects" by members of
Respondent's management directly, without necessarily going through the official chain of command.
15. Members of the Special Projects Team often bypassed their direct supervisors and spoke directly to Secretary Edmisten if
they had an issue that they wanted to raise. For example, when the Secretary of State's office relocated. Petitioner, as all other
Administrative Assistant II employees, did not have an office in the new building. He went directly to Secretary Edmisten
to complain about this and eventually an office was created for him. T vol. 11, pp. 167-168, 182-183, 197.
16. The audits found a number of abuses in Secretary Edmisten's administration, including the Special Projects. After the audits,
under Secretary Edmisten and after Secretary Edmisten's resignation under Secretary Faulkner, the interim Secretary of State
who was appointed to replace Secretary' Edmisten, steps were taken to respond to the issues raised in the audits, which
required the implementation, for the first time, of standard policies and procedures. For example, employees were required
to document reimbursable expenses, designate the hours worked, and could be terminated for making misrepresentations on
employment applications. In addition, employees were no longer allowed to circumvent the chain of command and were
13:3 NORTH CAROLINA REGISTER August 3, 1998 345
CONTESTED CASE DECISIONS
required to raise issues with their supervisors, instead of appeahng directly to the Secretary. Secretary Fauiioier also
implemented some new policies. For example, after problems arose when employees called radio talk shows to discuss issues
raised in the audits, disrupting the work day. Secretary Faulkner required employees to leave their doors open and turn off
their radios. Secretary Faulkner also took awa\ the law enforcement powers of Securities Investigators as a result of abuses
in power revealed in the audits. The changes resulting from the audits were difficult for some employees that had worked
under Secretary Edmisten. including Petitioner, to accept. T vol 1, pp. 75-76, 87-90, 93-94, 158, 165-166, 176; T vol II, pp.
23-25, 81,83-'84. 95. 172-174.
17. After Secretarv Faulkner took office. Eugene Cella became her Chief of Staff.
18. Petitioner was active in the audit process, as were most, if not all Respondent's employees. He participated in a number of
interviews with both the Auditors" office and SBI. He also spoke to the press and a number of organizations about his
activities as a member of the Special Projects Team, once the audits became public. T Vol 11, pp. 14. 16-17. 77-78, 84-86,
92,94-95, 168-169, 185, 187.
19. Petitioner established that his name was processed on the Division of Criminal Information ("DCl") terminal by Mr. Cella
who was a certified DCl operator. An audit was completed by DCI regarding Mr. Cella"s use of the DCI terminal. The audit
was completed after John Curr\', the employee that discovered the DCI checks on Petitioner, contacted DCl about the checks.
A final report regarding the appropriateness of the use of the DCl equipment by Mr. Cella was never completed, nor
conveyed to Mr. Cella. T vol I. pp. 70-71,73-74,79-81, 143-150, 153: T vol 11. pp. 160. 162-163.
20. Mr. Cella completed the DCI checks, with Secretary Faulkner's approval, because (a) Petitioner sometimes worked in the
securities enforcement area; (b) Petitioner had failed to complete the criminal history portion of a second Application for
EmploNTnent; and (c) it was discovered that Petitioner had misrepresented the extent of his college education in his initial
Application for Employment. ' In that application. Petitioner stated that he had completed 12 semester hours at NC State
University. In fact. Petitioner only attended one meeting of one class at NC State University. Another application was
required because it was revealed during the Auditors' audit that a number of Respondent's employees had incomplete
employment applications. In correcting matters raised in the audit, employees with incomplete applications were asked to
complete second applications. Petitioner had a difficult time completing the second application. The employees were given
one week to complete their applications. All emplo>ees complied with this deadline, except Petitioner. It took Petitioner over
a month to complete his application. Even then, the criminal history section of the application was incomplete (this section
was also not complete in the application that Respondent considered as Petitioner's initial application) and other information
was omitted. T vol II. pp. 126-127. 161-163. 180: Petitioner's Exhibits 10 and 1 1-B; Prehearing Order Stipulation (0-
21 . Petitioner filed a written grievance as a result of the DCI checks. In the grievance. Petitioner asked about the appropriateness
of the checks. Eventually. Respondent determined that the issue was not a grievable one under N.C. Gen. Stat. §126-34.1
and related regulations. Respondent suggested that the issue should be raised with DCI. since that agencN controls the use
of its equipment. Petitioner did not take an\ action to appeal the determination that the issue was not grievable b\ filing a
contested case petition with the Office of Administrative Hearings, or otherwise. T vol 1, pp. 121-123; T vol 11, pp. 70-75;
Petitioner's E.xhibit 2. 3. 4. 5. 6 and 7.
22. Petitioner supported Richard Petty in his bid for the Secretar\' of State's office. Petitioner had a bumper sticker on his car
indicating his support for Mr. Petty — and spoke about it within the office. T vol 11. p. 123.
23. From November 1996 until the date of the hearing, there have been at least 26 vacancies in the Department of the Secretary
of State. The Respondent did not call Petitioner regarding any of those 26 vacancies. Except for one of the 26 vacancies,
there is no evidence in the record about whether the Petitioner was minimally qualified for any of the positions. T vol I, p. 52;
Tvol II. pp.120-121.
24. The Office of State Personnel notified the Petitioner about a Notaries position with the Respondent. T vol II, p. 12 1 .
Petitioner contends that the application that was produced as his initial application was in fact his second application. The
produced application is a handwritten application that Petitioner alleges w as completed in a huny right before his interview for the securities
examiner position. Petitioner claims that his first application was a t\ped application which Respondent misplaced. Petitioner also claims that he
was asked to complete other applications, none of which were produced. T \ol II. pp. 64-66. 135.
346 NORTH CAROLINA REGISTER Augusts, 1998 13:3
CONTESTED CASE DECISIONS
25. Petitioner applied for the Notaries position. The Notaries position is the only position with Respondent that he applied for
during his twelve-month priority re-employment period (from November 1996 through October 1997). He was granted an
interview for the position. No information was provided that would establish that this position had ever been filled. T vol
II, pp. 121-122.
CONCLUSIONS OF LAW
1 . The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapter 1 26 and
Chapter 150B of the North Carolina General Statutes and has the authority to issue a recommended decision to the State
Personnel Commission ("SPC") which shall make the final decision.
The Reduction in Force Decision
2. Neither the Secretary of State's RIF Plan nor law requires that a current employee's services be terminated upon a decision
to abolish his or her position as the result of a decision to implement a reduction in force. However, an employer is not
required to create a new position in order to refi-ain fi-om RIFing an employee whose position has been eliminated.
3. The law and administrative rules require that certain procedural requirements be met before a position can be eliminated
through a reduction in force. An employee must be informed of the RIF as soon as is practicable. Information regarding the
employee's priority re-employment rights must be provided to the employee. Thirty days notice of the separation must be
given prior to the RIF. Finally, if the employee wants priority re-employment consideration, the employer must submit an
application on the employee's behalf to the Office of State Personnel requesting priority consideration. N.C. Gen. Stat. §126-
7.1, N.C. Administrative Code, Title 25, Articles 1 D.0504 and 1 D.0515.
4. These requirements were met by Respondent in eliminating the Securities Examiner position. For example:
A. Respondent informed Petitioner of the RIF as soon as practicable. Petitioner was informed through the
employee meetings that his position could be eliminated if NSMIA was passed prior to its passage. The decision
to eliminate Petitioner's position was conveyed to Petitioner very soon after the passage of NSMIA.
B. Petitioner was informed of his priority re-employment rights in the October 29. 1996, meeting with Mr.
Carr. In addition. Respondent assisted in the completion of the priority re-employment application.
C. Petitioner was given thirty days notice of the RIF. He was notified of the RIF on October 31, 1996, and
received his salary and accrued all benefits through November 30, 1996.
5. Respondent's RIF Guidelines provide that "[slepartion of emploNces through reduction in force shall occur only after every
feasible alternative has been exhausted." After the primary functions of Petitioner's position were eliminated by NSMIA,
what remained were essentially clerical functions. There is no evidence that there was another position available that
Petitioner could have filled. There is no evidence that Petitioner was capable of performing other different duties in the
Securities Division. Even if Petitioner was able to perform other job functions in the Securities Division, Respondent was
not obligated to create another position to replace the position that was eliminated.
Retaliation Claim
6. Under North Carolina law, a State employee cannot be discharged, threatened or otherwise discriminated against because
the employee reports any activities of "a State agency or State employee constituting:
( 1 ) A violation of State or federal law, rule or regulation;
(2) Fraud;
(3) Misappropriation of State resources; or
(4) Substantial and specific danger to the public health and safety."
N.C. Gen. Stat. §126-84(1997).
7. A prima facie case of retaliation because of a reported activity is established by showing the following elements: (A)
evidence of participation in a protected activit\ ; (B) followed by an adverse employment activity; and (C) establishment that
the protected activity was a substantial or motivating factor in causing the adverse action. Hanton v. Gilbert. '126 N.C. App.
13:3 NORTH CAROLINA REGISTER August 3, 1998 347
CONTESTED CASE DECISIONS
561. 571. 486 S.E.2d 432. 439 (1997).
8. Jurisdiction for retaliation claims brought under N.C. Gen. Stat. § 126-84 lies in our superior courts. However, to the extent
that the Petitioner claims that a retaliaton.' motive tainted the reduction in force process, the undersigned will address the
issues raised b\ the evidence presented at the hearing.
9. Petitioner has failed to establish a prima facie case of retaliation under N.C. Gen. Stat. § 126-84 for reporting the DCl checks
that were run on him. No evidence was presented that Petitioner engaged in a protected activit\'. and no evidence was
presented that established that the DCI checks violated State or federal law. rules or regulations, since Mr. Cella was a
certified DCI operator at the time that the checks were run and Petitioner had failed to answer the criminal history section
of his emplovment applications and misrepresented the e.xtent of his college education. Therefore. Mr Cella had a legitimate
purpose for running the checks. In addition, no evidence was presented that would establish that the reporting of the DCI
checks was a substantial or motivating factor in the decision to RIF the position. The decision to RIF the position was made
as a result of the passage of that act had on Petitioner's job duties.
10. In addition. Petitioner failed to establish a prima facie case of retaliation under N.C. Gen. Stat. §126-84 for Petitioner's
participation in the 1995 SBl and Auditor's oftlce audits of Respondent. The evidence presented by Petitioner related to these
allegations, show that Petitioner performed tasks during Secretary Edmisten"s administration that were later determined to
be improper. No evidence was presented that would establish specific information that Petitioner revealed to the auditors,
to even determine if the information was protected. In addition, no evidence was presented that would establish that
Petitioner's participation in the audits was a factor in the decision to RIF his securities examiner position.
Political Discrimination
11. In regards to the Political Discrimination claim, federal decisions are referred to for guidance in establishing evidentiary
standards and principles of law to be followed in State discrimination cases. Dep 't of Correction v. Gibson, 308 N.C. 131,
136. 301 S.E.2d 78, 82 (1983). Under federal law. in order to establish a prima facie case of political affiliation
discrimination. Petitioner must show that his political affiliation was the substantial and motivating factor in making the RIF
decision. Branti v. Finkel. 445 U.S. 507 (1980).
12. Petitioner presented no evidence that would establish that his support for Mr. Petty in his bid for the Secretary of State
position affected or influenced Respondent in anv manner in making the decision to RIF his securities examiner position.
The substantial or motivating factor in making the decision to eliminate the securities examiner position was the adoption
of NSMIA and the effect that its adoption had on Petitioner's legitimate job duties.
Priority Re-employment Rights
13. The law and related regulations grant RIF employees priority re-employment rights. Under the law. if a RIF employee applies
for a State position that would be a promotion from his or her RIF position and has substantially equal qualifications as an
applicant that is not a State employee, the RIF employee is to be considered over the non-State employee. If the RIF
emplovee applies for a State position that is equal or lower to the salary grade of the position eliminated by the RIF and is
determined to be qualified for the position, the employee shall receive priority consideration over all applicants that are not
State employees. No priority rights exist if all applicants for the position are State emplovees. unless the RlFed employee
has more than 10 years of state service and the other State emplovee has less than 10 vears of state service. The RIFed
employee shall receive equal consideration among State employees. The priority re-employment rights extend for twelve
months from the date that the employee is notified of the RIF. N.C. Gen. Stat. §126-7.1 (1997).
14. The North Carolina Administrative Rules do not require that either the Respondent or the Office of State Personnel notify
the Petitioner about every job vacancy that occurs during his one \ear priority re-employment status.
15. Petitioner did not establish that his priority re-emplovment rights were violated. There was no evidence presented that
Petitioner had ten \ears or more of State service which would have given him priority over any State employees with less
than ten years of State Service. Petitioner presented e\idence that he applied and interviewed for one position with the
Secretary of State's office during the priority re-employment period (from October 1996 through October 1997). However,
no evidence was presented that would establish: (a) Petitioner's salarv grade (or the grade of the securities examiner position),
(b) the salary grade of the position applied for. (c) whether an\ applicants were not State emplovees. (d) that the position
was tilled b\ an individual that was not a State employee, (e) that Petitioner was qualified for the position, or (f) that the
position was filled. In addition, no evidence, such as that which was just enumerated, was presented regarding any other
348 NORTH CAROLINA REGISTER August 3, 1998 13:3
CONTESTED CASE DECISIONS
positions that were available with Respondent during the priority re-employment period.
RECOMIMENDED DECISION
It is recommended that the State Personnel Commission:
A. Affirm. Respondent's decision to eliminate Petitioner's securities examiner position through a RIF as proper procedures were
followed by Respondent in eliminating the position and Petitioner's retaliation and political discrimination claims are
unfounded;
B. Dismiss Petitioner's claims regarding priorit\' re-employment rights as no evidence was presented that would establish that
his priority re-employment rights were violated by Respondent.
ORDER
It is ordered that the agency, serve a copy of the Final Decision on the Office of Administrative Hearings, P.O. Drawer
27447, Raleigh. NC 2761 1-7447. in accordance with N.C. Gen. Stat. § 150B-36(b).
NOTICE
Before the agency makes the FFNAL DECISION, it is required by N.C. Gen. Stat. § 1 50B-36(a) that the agency give each
party an opportunity to file exceptions to this RECOMMENDED DECISION, and to present written arguments to those in the agency
who will make the final decision.
The agency is required by N.C. Gen. Stat. § 1 50B-36{b) to serve a copy of the FFNAL DECISION on all parties and to flunish
a copy to the parties' attorneys of record.
This the 6"' day of July, 1998.
Brenda B. Becton.
Administrative Law Judge
13:3 NOR TH CAROLINA REGISTER A iigusi 3, 1 998 349
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
98 ABC 0382
SOKHA HLOR RAMADNEH d/b/a
TIC TOC GROCERY
Petitioner,
V.
N.C. ABC COMMISSION
AND NATURAL RESOURCES, DIVISION OF MATERNAL
AND CHILD HEALTH, NUTRITION SERVICES SECTION
Respondent.
This matter came on for hearing on June 2. 1998 before Administrative Law Judge Dolores O. Smith in Charlotte. North
Carolina.
APPEARANCES
Petitioner: J. Jerome Miller
Attorney at Law
723 S. Sharon Amity Road
Charlotte. North Carolina 28211
Attome) for Petitioner
Respondent: LoRita Pinnix
Assistant Counsel
N.C. ABC Commission
PO. Box 26687
Raleigh, North Carolina 27611-6687
Attorney for Respondent
ISSUE
1 . Did the Respondent err in rejecting the Petitioner's application for off-premises malt beverage permit and unfortified and
fortified uine permits, based on the location being not a suitable place to hold ABC permits in that it is located within 50 feet of a
church?
STATUTE AND RULES IN ISSUE
N.C. Gen. Stat. 18B-901(c)(5)
Based upon careful consideration of the testimonv and evidence presented at the hearing, the documents and exhibits received
into evidence, and the entire record in this proceeding, the undersigned makes the follow ing:
FINDINGS OF FACT
\. On June 1 1. 1997, Petitioner purchased a business known as Tic Toe Grocerv in Charlotte, North Carolina from Paul
Williams who had owned and operated a store at that location for approximately 25 years.
2.
A srocerv /convenience store has been located at that site since the earlv 1930s.
3. During the time Mr Williams owned and operated the store he held an off-premise malt beverage permit and unfortified and
fortified wine permits.
350
NORTH CAROLINA REGISTER
Augusts, 1998
13:3
CONTESTED CASE DECISIONS
4. When Petitioner purchased the store he was given a temporary permit.
5. On or about February' 1 1. 1998. the Petitioner purchased the real estate on which the store is located for the sum of $65,000.
6. The Petitioner applied for permanent ABC permits and ALE Agent Nicole Gabriel was assigned to do the background check
for the application.
7. Agent Gabriel visited the site and noticed that the store was close to a church, the Church of God Holiness.
8. The store faced one street and the church faced another but the backs of the buildings were close to each other.
9. The back and side of the store as well as the side of the church are grassy areas which are accessible from the street.
10. Agent Gabriel measured the distance with a rolling measuring device and determined that the distance between the back of
the grocery store and the side/back of the church was appro.ximately 37 feet.
11. N.C. Gen. Stat. 18B-90 1(c)(5) provides:
(c) Factors in Issuing Permit. - Before issuing a permit, the Commission shall be satisfied that the applicant
is a suitable person to hold an ABC permit and that the location is a suitable place to hold the permit for which he
has applied. To be a suitable place, the establishment shall comply with all applicable building and fire codes.
Other factors the Commission shall consider in determining whether the applicant and the business location are
suitable are:
(5) Whether the establishment is located within 50 feet of a church or public school or church school;
12. The statute is silent as to whether the 50 feet distance should be measured from the front doors or from any other particular
part of the building.
13. Subsequently, members of the church were asked whether or not they had objections to the issuance of the permits.
14. The church members conferred and, because they are averse to the use of alcohol, they determined that they would in fact
pose objections.
15. Wendell Mazingo, a Deacon of the Church of God Holiness testified that the church members had been ver\' fond of Paul
Williams and had come to know "Mark," the Petitioner's husband of whom they are also quite fond.
16. Although there has been litter on the propert\ of the store and the church. Deacon Mazingo believes that the litter is caused
primarily from people who loiter about the community center which is across the street.
17. The church members do not object to the store on any grounds other than they are opposed to the use of alcohol.
Based on the above Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1 . The statute is silent as to the manner in which the 50 foot distance should be measured. If the 50 foot measurement is to be
made from the nearest points on each building, the purpose of the statute might create abberent results.
For example, in a large city, a permittee location ma\ face one street and a church may be behind it, facing the opposite
street. The area behind each of these buildings ma\ be inaccessible and used only for alleyway purposes. Nevertheless, a
measurement made from the nearest point to the nearest point could result in a measurement of less than 50 feet, although members
of the public would in fact have to circumnavigate the entire block to get from front door to front door.
Conversely, taking the 50 foot measurement from front door to front door could also result in an abberant situation. If the
measurement from front door to front door is greater than 50 feet, but the properties abut each other with public access area in
between, this could cause a disturbance to the church such that the statute contemplates avoiding.
13:3 NOR TH CAROLINA REGISTER A itgust 3, 1 998 351
CONTESTED CASE DECISIONS
In the instant case the \ard area bet\\een the church and the permirtee location appear at the present time to be accessible
to the public in \shat is an apparentK rural section of Charlotte. There is no evidence to indicate whether the church or the permittee
owns the grass\ area between and around the two buildings.
2. While each of these measurements could in various scenarios cause an inequitable result, there should be a set rule for the
taking of the 50 fool measurement.
The Petitioner has submitted no cases from this jurisdiction on the 50 foot rule. However, the Petitioner has submitted cases
from other jurisdictions. For example, in Kroger Co. \. Michigan Liquor Control Commission. 366 Mich. 481(1 15) N.W. 2d. 377
(1962) . the Court ruled that the distance should be measured along the center line of the street. Further, in the case of Wakefield.
10 Alaska 599 ( 1945). the Court held that measurements should be from front door to front door. Also, in Hunt Club. Inc. y. Moberlv.
407 S.W. 2d. 148 (Kentuck\ ). the court ruled that the measurement between the church and the license permises was to be taken on
the street and not the shortest distance between the two rear portions of the building.
LastK. in the New York Case of R, H. Masse\' and Co. v. Murray. 38 NYS 903 (1896), the Court ruled that the measurement
should be made ""entrance to entrance."
While none of these cases control in the instant matter, it is apparent that courts have struggled with the directions for taking
the 50 foot measurement.
After due and deliberate consideration on this issue, it appears to the undersigned that the appropriate measurement should
be from front door to front door. In the instant case, there is no evidence to indicate what the measurement is from front door to front
door. However, it appears from a \ ideo introduced as evidence that the measurement ma> ver>' likeK be greater than 50 feet.
Based upon the abo\ e Conclusions of Law. the undersigned makes the follow ing:
RECOMMENDATION
1 . It is recommended that the ALE agent remeasure the premises from the front door of the licensed premises to the front door
of the church.
2. It is further recommended if this measurement is greater than 50 feet, the Petitioner's permits be issued.
ORDER
It is hereb> ordered that the agenc\ serve a cop\ of the Final Decision on the Office of Administrative Hearings, P.O. Drawer
27747. Raleigh. N.C. 2761 1-7447. in accordance with North General Statute 150B-36(b).
NOTICE
The agencN making the Final Decision in this contested case is required to give each partv an opportunitv to file exceptions
to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B-
36(a).
The agenc\ is required b\ G.S. 150B-36(b) to serve a cop> of the final decision on all parties and to furnish a cop\ to the
parties" attome\ on record and to the Office of Administrative Hearings.
The agencN that will make the final decision in this contested case is the North Carolina Alcoholic Beverage Control
Commission.
This the 29'" dav of June. 1998.
Dolores O. Smith
Administrative Law Judge
352 NORTH CAROLINA REGISTER August 3, 1998 13:3
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